tiu. 


1^' 


SA^f  DIEGO 


^     3  1822  02659  4671 


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University  of  California,  San  Diego 
Please  Note:  This  item  is  subject  to  recall. 

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THE  TRIAL  OF  THE  CONSTITUTION. 


THE 


TRIAL  or  THE  CONSTITUTION. 


BY 


SIDNEY  GEOllGE  FISHER, 


AUTHOR   OF 


'•THE   LAW   OF   THE   TERRITORIES,"    "THE   LAWS   OF   RACE    AS 
CONNECTED   WITH    SLAVERY,"    ETC.    ETC. 


'  .Stand  ye  in  the  ways,  and  see  and  ask  for  the  old  paths,  where  is  the  good  way,  and  walk 
therein,  and  ye  shall  find  rest  for  your  souls."    Jer.  6 :  16. 


PHILADELPHIA: 
J.    13.    L  I  P  P  I  N  C  O  T  T    &    CO. 

LONDON :  SAMPSON  LOW,  SON  k  CO. 

18G2. 


i 


Entered,  according  to  Act  of  Congress,  in  the  year  1862,  by 

SIDNEY  GEORGE  FISHER, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  Pennsylvania. 


P  11  E  F  A  C  E, 


As  passing  events  are  referred  to  in  the  following  pages, 
it  is  proper  to  state  that  the  third,  fourth  and  fifth  chapters, 
except  a  few  additions  and  alterations,  were  written  before 
the  first  and  second.  My  original  design  was  to  write  an 
essay  on  the  constitutional  provision  for  suspending  the  "Writ 
of  Habeas  Corpus;  and  it  was  suggested  by  Mr.  Binncy's 
first  pamphlet  on  that  subject, — the  reasoning  of  whicli.  not- 
withstanding my  deference  to  such  high  authority,  did  not 
satisty  my  mind.  Some  weeks  before  the  appearance  of 
Mr.  Binney's  second  pamphlet,  my  argument  on  the  Habeas 
Corpus  \va8  finished;  but  the  writing  of  it,  and  the  events  of 
the  war,  had  suggested  reflections  on  other  parts  of  the 
Constitiition,  I  was  much  impressed  by  the  fact,  that 
Mr.  Binney  and  others  had  thought  it  necessary  to  write  on 
the  subject  at  all;  that  the  law  should  be  unsettled  and  dis- 
puted on  questions  of  such  vital  importance  as  the  power  of 
the  Go\"ernment  to  defend  the  public  safety,  and  the  security 
afforded,  by  the  Constitution,  to  personal  liberty. 

"Why  is  the  law  unsettled?     Why  can  no  man  tell  what 

are  the  actual,  undoubted  powers  of  the  Goveniment?     Is  it 

not  because  our  system  is  new  and  untried;  and  that  now, 

when  it  is  for  the  first  time  subjected  to  the  test  of  a  severe 

I 


VI  PREFACE. 

ordeal,  its  defects  are  becoming  manifest, — defects  hitherto 
unsuspected?  No  such  questions  have  arisen  under  the 
English  Constitution  for  nearly  two  centuries. 

Following  the  course  of  reasoning  thus  suggested,  one 
topic  opened  the  way  to  another,  until  at  length  I  ended 
where  the  work  more  appropriately  begins, — with  a  discus- 
sion of  the  nature  of  the  Constitution  itself,  and  of  the 
powers  which  it  does  or  must  grant  to  the  Clovernnient.  over 
itself,  and  over  the  Union. 

Books,  laws,  facts,  even  words  and  j)hrases,  sometimes 
assume  a  new  aspect,  when  seen  through  the  medium  of  feel- 
ings produced  by  important  events  and  a  novel  situation. 
Like  many  others,  I  had  been  content  to  sit  at  the  feet  of 
the  learned  doctors  of  our  law,  and  accept  their  interpreta- 
tion as  correct.  But  the  war  has  shed  new  light  on  the 
principles  and  meaning  of  our  Constitution,  and  revealed  in 
it  imperfections,  perhaps  also  powers,  scarcely  perceived  by 
its  makers,  and  hidden  from  the  superficial  and  unsuspecting 
glances  of  the  people,  during  our  long  period  of  prosperity 
and  peace. 

I  yielded  with  reluctance  to  the  reasoning,  by  which  some 
of  the  opinions  asserted  in  this  book  are,  in  my  judgment, 
sustained.  If  that  reasoning  can  be  refuted,  no  one  will  be 
more  gratified  than  myself  I  off'er  my  views  to  the  public 
Avith  unfeigned  diffidence.  I  consider  it  a  duty  to  ofter  them. 
because,  if  true,  they  are  important;  and  I  believe  them  to 
be  true.  I  do  not  advocate,  I  state  them.  Eeason  looks  for 
truth  only,  not  expediency;  well  knowing  that  what  is  false 
cannot  be  expedient;  well  knowing,  too,  that  a  Government 
founded  on  falsehood,  cannot  endure.     What  is  false  in  uni- 


PREFACE.  Vli 

Constitution,  or  in  the  interpretation  of  it,  should  he  i^ot  i-i<l 
of  J  for  thus  only  eiin  it  be  preserved. 

The  flight  of  events  is  now  so  rapid,  that  he  wliu  \vishe^ 
to  influence  opinion  must  speak  quickly,  and  <aiiii(>t  there- 
fore bestow  much  time  on  careful  and  artistic  exi-ciitiou. 
This  work  was  begun  in  February  last,  and  coinpieted  in 
October, — a  period  long  enough  for  one  of  larger  size,  liad 
not  the  writing  of  it  been  frequently  interrupted.  Besides 
its  other  faults,  it  has  some,  therefore,  attributahU-  to 
haste, — redundancies,  repetitions,  perhaps  some  mistakes  in 
facts  and  references.  For  these  I  crave  the  indulgence  ot 
ray  readers,  should  I  be  lucky  enough  to  have  any.  If  tlie 
book  contains  any  substance  of  truth,  inelegance  of  form 
may  be  forgiven. 

November  22,  1862. 


CONTENTS. 


Preface, 


CHAPTER  I. 

A  WRITTEN   CONSTITUTION. 

Government  is  a  machine  for  imposing  rules  of  conduct — Its  only  safe 
foundation  is  custom — An  unwritten  Constitution — A  written 
Constitution — Ours  young  in  time  and  experience — Was  una- 
voidably a  written  Constitution — Its  framers  retained  what  they 
could  of  the  English  Constitution — The  difficulties  of  their  task — 
The  materials  they  possessed — A  new  Government  must  combine 
old  things  with  new — A  Government  of  limited  powers — Altera- 
tions of  the  English  Constitution,  how  made — How  made  in 
ours — The  Fifth  Article — Difficulty  of  applying  it  in  practice — 
Changed  condition  of  the  country  since  the  Constitution  was 
made — Alterations  of  the  Constitution  require  knowledge  and 
intelligence  higher  than  the  masses  possess — Restraints  on  the 
power  of  the  English  Parliament — The  present  war  illustrates 
the  difficulty  of  applying  the  Fifth  Article — Cannot  the  Constitu- 
tion be  altered  otherwise  than  by  the  Fifth  Article  ? — The  Con- 
stitution has  not  prevented  civil  war — How  can  the  difficulties 
created  by  the  war  be  met  ? — Not  by  the  Fifth  Article — There 
cannot  be  a  Government  with  limited  powers — Internal  checks 
to  the  power  of  Government — Changes  may  be  made  in  the  Con- 
stitution with  the  approbation  of  the  people— The  restraining 
power  of  the  Judiciary  in  our  system — Under  a  written  Constitu- 
tion, two  questions  arise  :  What  is  the  law  ?  and  Does  it  conform 


CONTENTS. 

to  the  natural  law  of  all  Governments? — The  second  question 
considered  first — Government  is  the  means  of  applying  the  su- 
preme power  of  the  people  to  make  laws — Power  which  the  people 
cannot  use,  they  do  not  possess — The  only  power  they  can  use  is 
that  of  dismissing  their  public  agents — Should  all  branches  of  the 
Government  unite  to  alter  the  Constitution,  there  is  no  legal 
remedy — Congress  would  be  omnipotent,  but  for  the  alleged 
check  of  the  Judiciary — Can  the  Judiciary  apply  such  a  check  ? 
— Power  is  the  ability  to  do  something,  or  cause  it  to  be  done — 
Can  the  Judiciary  exert  a  control  over  the  Legislature  and  the 
Executive  ? — Not  if  it  be  weaker  than  they — It  is  useless  to  dele- 
gate power  that  cannot  be  exerted — The  weakness  of  the  Judi- 
ciary— The  Legislature  must  be  supreme  in  a  popular  Govern- 
ment— Our  Government  has  not  the  stability  of  the  English — 
What  are  the  defects  of  our  Constitution  ?  and  what  the  remedy  ? 
are  problems  presented  by  the  war — Changes  demanded  by  the 
people  ought  to  be  made  by  Congress — The  want  of  undisputed 
power  by  Congress  the  difficulty — Constitutional  questions  never 
settled — Case  of  Dred  Scott — False  doctrines — Powers  necessary 
to  the  Government  illustrated  by  the  rebellion — A  Judiciary  can- 
not be  a  check  on  the  Government — It  cannot  exert  political 
power — What  is  the  duty  of  the  Judiciary  in  case  of  an  alteration 
of  the  Constitution,  intentionally  made  by  the  Government  with 
the  assent  of  the  people — Authorities — A  supposititious  judicial 
opinion — Another — Power  and  duty  of  the  English  Judiciary — 
Of  ours — The  war  may  cause  changes  in  our  Constitution — How 
can  they  be  made  ? — Implied  powers  of  Government — Necessity 
of  ascribing  supreme  power  to  Government,         .         .        .         .17 


CHAPTER   11. 

UNION. 

Our  Constitution  partly  new  and  partly  old — The  English  Govern- 
ment the  model  of  ours,  so  far  as  circumstances  permitted — On 
all  questions  we  should  therefore  ask  first,  what  was  the  English 
law  ? — Nothing   new  in  the  American  Union — A  pattern  for  it 


CONTENTS.  xi 

existed  in  "The  United  Kingdom,"  and  in  the  relation  of  the 
British  Colonies  to  the  mother  country — Love  of  local  power  a 
characteristic  of  the  Saxon  race — The  British  Union — Conquest 
of  the  Islands  by  the  Saxons — By  the  Normans — Qualities  of 
race  explain  English  history — The  ruling  principle  of  the  En- 
glish Government  is  central  combined  with  local  power — Ireland 
— Its  conquest  and  union  with  England — Scotland — Its  indepen- 
dence and  union  with  England — Similarity  between  the  Act  of 
Union  with  Scotland  and  our  Constitution — What  is  the  law  of 
the  English  Union  with  Scotland  and  Ireland  ? — What  is  the  law 
of  the  English  Union  with  the  Colonies? — Resistance  of  the 
American  Colonies  to  the  Government — The  principle  involved — 
The  Imperial  power  of  Parliament — Why  our  ancestors  withdrew 
from  the  British  Union — That  Union  their  model  when  they 
came  to  make  one  for  themselves — What  is  and  must  be  the  law 
of  the  American  Union? — Union  of  the  Colonies  before  Indepen- 
dence— The  Confederation — Its  defects — A  Convention  appointed 
to  make  the  Constitution — Necessary  powers  of  the  Government 
to  preserve  or  dissolve  the  Union — Constitutional  provisions — 
Bishop  Warburton  on  the  nature  of  an  incorporate  Union — 
Whatever  power  be  ascribed  to  the  Government,  it  is  always 
under  the  control  of  the  States  and  the  people — Power  of  the 
Government  under  the  Constitution  is  adequate  to  the  exigencies 
of  the  Union — It  has  power  to  preserve  or  dissolve  it— The  ex- 
tent of  the  country  forbids  the  hope  of  a  perpetual  Union— How 
it  may  be  dissolved  by  consent  and  the  permission  of  the  Govern- 
ment— The  right  of  secession— Power  of  the  Government  to  per- 
mit and  regulate  secession— Power  of  the  Government  to  expel 
a  State  from  the  Union— Utah— Civilization  depends  on  race— 
The  Saxon  race  and  civilization  do  not  flourish  in  the  South — 
In  the  South  we  have  the  black  race— Its  influence  on  civilization 
—A  time  may  come  when  Union  with  the  South  will  be  impossible 

The  Government  must  have  power  to  exclude  the  South  from 

the  Union— The  rebellion— The  objects  of  the  war  on  the  part  of 
the  Government  are  the  vindication  of  its  authority,  and  the  resto- 
ration of  the  Union— What  the  Northern  people  may  choose  to 
do— The  Government  must  have  unlimited  power,  or  give  place 


xii  CONTENTS. 

to  anotlier  which  has — Summary  of  the  conclusions  of  this  and 
the  preceding  Chapters, 99 


CHAPTER  III. 

EXECUTIVE   POWER. 

The  Executive  branch  of  our  Government  a  novelty — The  English 
Executive — Its  essential  feature  subordination  to  the  Legislature 
— The  war  is  testing  the  Executive  power  of  the  Constitution — 
Two  questions  have  arisen :  What  is  the  power  of  the  Govern- 
ment to  defend  the  public  safety?  and  What  security  does  the  law 
afford  to  personal  liberty  ? — Suspension  of  the  Writ  of  Habeas 
Corpus  by  the  President — Discussions  to  which  it  has  given  rise 
— Which  department  of  the  Government  has  authority  to  suspend 
the  privilege  of  the  Writ  ? — What  is  the  English  law  ? — What  is 
the  American  law? — Analogy  between  English  and  American 
Executive  power — The  President  has  not  exclusive  right  to  sus- 
pend the  privilege  of  the  Writ — Authorities — Statement  of  the 
law,  English  and  American — Conduct  of  Mr.  Lincoln  in  suspend- 
ing the  Writ — His  Message  to  Congress  on  the  subject — Duty  of 
Congress — What  ought  to  be  the  law — Other  elements  of  the  Ex- 
ecutive power  of  our  Government  yet  to  be  tested  by  time — The 
position  of  a  British  Monarch,  and  his  functions — The  hereditary 
principle — Dangers  of  an  election  of  the  President  by  the  people — 
The  ballot-box  the  American  substitute  for  the  hereditary  princi- 
ple— The  American  Executive  power  tested  by  the  war — Diffi- 
culty of  making  a  good  selection  by  a  popular  vote — Position  of 
the  English  Ministry — The  mode  of  electing  a  President  provided 
by  the  Constitution — Its  failure — Executive  patronage — Nomi- 
nating conventions  —  The  proper  organization  of  Executive 
power  a  problem  yet  to  be  solved  by  the  American  people, .         .  202 


CONTENTS.  •  Xm 

CHAPTER   IV. 

SLAVERY. 

Slavery  and  the  slave  trade  novelties  in  our  Constitution — The  negro 
race  flourishes  in  the  South — Has  become  the  foundation  of 
Southern  society — The  Union  could  not  have  been  made,  unless 
slavery  and  the  slave  trade  had  been  protected  by  the  Constitution 
— They  were  accepted  with  reluctance  by  the  Convention — Th.e 
founders  made  a  mistake — Disastrous  consequences  of  that  mis- 
take— The  Convention  expected  slavery  to  pass  away — Why  their 
hopes  were  disappointed — Nature  of  the  negro  race — Its  influence 
on  the  white  race — Cotton — Rise  of  opinion  against  the  slave 
trade — -Against  slavery — Growth  of  the  Abolition  party — The 
South  alarmed — Its  plans  of  resistaiijce — They  all  fail — Secession 
— The  North  roused — Civil  war — Mistakes  of  the  South — Slavery 
was  safe  in  the  Union — The  Constitution  on  its  trial  with  refer- 
ence to  slavery — What  shall  we  do  with  slavery? — Emancipation 
as  a  war  measure — Conduct  of  the  Democratic  party  in  relation 
to  the  war — "The  Union  as  it  was" — Prevailing  sentiment  of  the 
Northern  people — The  Government  now  in  a  position  similar  to 
that  of  the  founders  of  the  Constitution — The  Sphinx's  riddle — 
Any  settlement  of  the  slavery  question  must  satisfy  justice  for  the 

negro,  the  rights  of  the  Southern  people  and  the  moral  sentiment 

...  * 

of  the  Northern  people — True  position  of  the  negro  race  in  the 

• 

South — Not  that  of  merchandise — The  place  assigned  to  it  by  the 

Constitution — Rights  of  the  Southern  people  in  relation  to  the 
negro  race — The  Northern  people  must  participate  in  its  govern- 
ment— The  demands  of  Northern  opinion  on  the  subject — The 
President's  plan  of  gradual  emancipation  by  the  aid  of  Congress — 
Abolition  of  slavery  in  the  District  of  Columbia — Prohil^ition  of 
it  in  the  Territories — These  measures  opposed  by  the  Border 
Slave  States  and  by  Northern  Democrats — Moral  influence  of  the 
President's  proposal — It  does  not  reach  the  root  of  the  evil — The 
.  principle  that  men  are  property  is  false — There  can  be  no  peace 
or  Union  till  it  be  taken  out  of  the  Constitution — The  fugitive 
slave  law — Why  has  the  negro  race  power  over  our  destiny? — The 
President's  plan  of  gradual,  compensated  emancipation  cannot 


xiv  CONTENTS. 

be  executed — Emancipation  by  the  Government  without  compen- 
sation would  be  unjust — "The  Union  as  it  was"  impossible — A 
plan  suggested  for  gradual  emancipation — Constitutional  diffi- 
culties— Weakness  of  the  Government — The  plan  proposed  might 
be  carried  out  according  to  the  Constitution,       ....  26!) 


CHAPTER    V. 

^  DEMOCRACY. 

No  Democracy  in  the  Constitution — The  Slave  States  virtually  aristo- 
cratic and  oligarchic — Have  no  resemblance  to  European  aristoc- 
racies— Decay  of  the  Southern  gentry — Increase  and  triumph  of 
Democracy  in  the  North — Elements  of  Northern  society — The 
Constitution  has  failed  to  prevent  civil  war — The  antagonism  be- 
tween North  and  South  because  of  slavery  produced  the  war — 
The  Missouri  Compromise — Why  it  was  violated — Consequences 
of  the  attempt  to  force  slavery  into  the  Territories — These  con- 
sequences caused  the  war,  and  were  under  the  control  of  the 
leaders  of  the  Northern  Democracy — Why  did  Northern  Demo- 
crats unite  with  the  South  to  repeal  the  Missouri  Compromise? — 
And  to  force  slavery  into  Kansas? — Why  did  not  the  Constitution 
prevent  the  war? — Slavery  not  alone  the  cause  of  the  war,  because 
the  power  of  slavery  depended  on  its  alliance  with  a  Northern 
party — Abolitionism  did  not  cause  the  war — Its  true  character-^ 
Southern  attacks  on  Northern  rights  gave  strength  to  the  Aboli- 
tion party — The  Northern  people  have  never  been  Abolitionists — 
The  Republican  party  was  created  by  the  repeal  of  the  Missouri 
Compromise  and  by  the  aggressions  of  the  South  in  Kansas — 
The  Republican  party  never  meant  to  attack  slavery  as  a 
Southern  institution — Mr.  Seward  and  Mr.  Lincoln — The  party 
of  Mr.  Bell — Democracy,  as  permitted  by  the  Constitution,  now 
on  trial — Our  troubles  caused  either  by  want  of  intelligence  in 
the  people  or  defects  in  the  machinery  of  the  Government — The 
dangerous  element  that  caused  the  war  is  in  the  Democratic 
party — It  was  divided  by  the  exactions  of  the  South — Mr.  Doug- 
las— Social  distinctions  do  not,  in  this  country,  form  the  dividing 


CONTENTS.  XV 

lines  of  parties — Democracy  in  the  European  sense  does  not 
exist  here — The  Celtic  race — The  Germans — The  dangerous 
elements  of  American  society  belong  to  the  Democratic  party — 
Equality  of  condition  causes  the  formation  of  parties — Obedience 
to  party  discipline — The  party  that  contains  the  most  ignorance 
and  poverty  will  be  the  most  submissive  to  party  rules — Analysis 
of  American  society  explains  the  cause  of  the  war — Alliance  of 
the  South  with  the  Democratic  party — The  war  caused  by  a  small 
minority  of  the  people  and  by  political  leaders — The  sway  of 
demagogues — Liberty  always  in  danger  during  periods  of  tranquil 
prosperity — The  North  was  gradually  falling  under  the  bondage 
of  slavery  and  Democracy — The  Union  valued  for  the  sake  of  its 
material  benefits — Abolitionism  the  only  moral  element  left  in 
our  politics — Subserviency  of  Northern  opinion  to  slavery — The 
spell  broken  by  the  fall  of  Fort  Sumter — The  war  caused  by  the 
politicians  and  not  by  the  people,  even  in  the  South — This  fact 
proves  a  defect  in  the  machinery  of  Government — Nominating 
Conventions — The  low  character  of  public  men  and  universal 
corruption  caused  by  them — The  moral  and  intellectual  standard 
of  the  Government  below  that  of  the  people — The  intelligence  of . 
the  people  avails  nothing  if  it  cannot  be  applied  because  of  de- 
fects in  the  Government — Electoral  methods — Lessons  of  the 
crisis — What  is  Democracy  ? — Effects  of  equal  and  universal 
suflfrage — Power  of  the  people  cannot  be  applied  without  suitable 
machinery — DifiBculty  of  constructing  a  Government — Nomi- 
nating Conventions  should  be  regulated  by  the  Government — 
Changes  likely  to  be  caused  by  the  war — Is  the  power  to  cope 
with  the  difiBcult  questions  to  arise  granted  by  the  Constitution? 
— Can  they  be  disposed  of  by  universal  suffrage  and  nominating 
Conventions  ? — The  war  has  developed  the  intelligence  and  force 
of  the  Northern  people — They  must  always  live  under  free  in- 
stitutions,     318 

APPENDIX. 

NOTE. 
The  President's  Proclamation  of  September  22d,  1862,      .        .        .  361 


THE 


TRIAL  OF  THE  CONSTITUTION. 


CHAPTER  I. 

A    WRITTEN    CONSTITUTION. 

Government  is  a  machine  for  applying  principles  and  im- 
posing rules  of  conduct  essential  to  the  well-being  of  a  people. 
The  machine  is  very  simple  or  very  complex,  according  to  the 
needs  and  capacity  of  the  'people ;  and  it  varies  with  these, 
through  all  forms,  from  the  chieftainship  of  a  savage  tribe  up 
to  the  highly  artificial  structure  of  an  English  or  American 
constitution.  It  varies,  also,  to  supply  wants  created  by  the 
progress  which  a  nation  makes,  upwards  or  downwards,  to 
higher  or  lower  planes  of  civilization,  and  is  always  "  becom- 
ing" something  that  it  was  not ;  its  "real  being,"  to  use  Plato's 
lano-uacre,  consistincr  of  the  idea  or  truth  it  is  intended  to  mani- 
fest  and  execute. 

But  the  machine  called  Government,  or  improvements  in  it, 
are  not  easily  invented,  and  when  invented  are  difficult  to  get 
accepted  by  the  people  or  put  in  operation.  Forms,  therefore, 
should  not  be  rashly  altered ;  and  the  only  safe  foundation  for 
government  is  custom — another  name  for  experience — the  best 
guide  in  temporal  affairs.  No  man  or  assembly  of  men  is  wise 
as  the  generations  or  as  time,  for  time  reveals  imperfections, 
and  the  thouo-ht  of  those  who  feel'  them  is  set  to  Avork  to 
remedy  them  as  they  arise.  Therefore  Lord  Coke  says,  "  If 
the  reason  that  is  dispersed  into  so  many  several  heads  were 

2 


18  THE    TRIAL    OF    THE     CONSTITUTION. 

united  into  one,  yet  could  he  not  make  such  a  law  as  the  law 
of  England  is ;  because  by  many  successions  of  ages  it  hath 
been  fined  and  refined  by  an  infinite  number  of  grave  and 
learned  men,  and  by  long  experience  grown  to  such  perfection, 
for  the  government  of  this  realm,  as  the  old  rule  may  be  justly 
verified  of  it,  neminem  oportet  esse  sapientorum  Jcgihus ;  no 
man  (out  of  his  own  private  reason)  ought  to  be  wiser  than  the 
law,  which  is  the  perfection  of  reason." 

The  meaning  of  this  is,  not  that  the  law  has  attained  or  can 
attain  ideal  perfection,  but  that  the  reason  of  the  people  is 
always  employed  in  perfecting  it  to  suit  the  demands  which 
are  made  by  time,  so  that  the  law  grows  with  the  mental 
growth  of  the  nation,  and  fits  its  shape  and  stature  always, — 
thus  imitating,  in  its  changes,  time  itself,  which,  as  Lord 
Bacon  says,  "  innovateth  greatly,  but  quietly  and  by  degrees, 
scarcely  to  be  perceived." 

Indeed,  it  is  philosophically  true  that  all  law,  in  the  long 
run,  is  and  can  be  nothing  but  custom.  A  statute  is  a  decla- 
ration of  an  old  right  or  a  new  want.  If  it  supplies  the  one 
or  guarantees  the  other,  it  survives,  and,  Avith  its  constructions 
and  the  practice  that  grows  up  under  it,  becomes  custom  or 
common  law.  If  it  serves  neither  of  these  ends,  it  is  repealed 
or  amended,  or  becomes  obsolete,  or  is  bent  or  twisted  by  the 
courts  and  the  people  to  suit  the  needs  of  the  hour,  until,  by 
judicial  legislation  and  the  action  of  public  opinion,  it  is  made 
to  mean  something  which  perhaps  those  who  wrote  it  never 
intended.  So  it  is  with  political  or  constitutional  law.  It  is 
either  immemorial  custom,  as  in  England,  or  a  written  consti- 
tution in  the  nature  of  a  statute,  altering  custom  to  suit  a 
change  of  circumstances,  or  to  provide  security  for  violated  or 
newly-acquired  rights. 

A  revolution  is  usually  the  occasion  which  gives  birth  to 
alterations  in  constitutional  law,  or  to  renewed  guarantees  for 
endangered  rights.  Should  the  ncAv  constitution  prove  ade- 
quate to  the  wants  and  satisfy  the  wishes  of  the  people,  it  is 
cherished  as  their  chief  blessing  and  richest  inheritance.  Suc- 
ceeding generations  are  taught  to  regard  it  Avith  love  and  reve- 
rence, and  it  becomes,  after  a  time,  custom  or  common  law, 


A    WRITTEN     CONSTITUTION.  19 

wliich.  grows  and  flourishes  in  the  genial  soil  of  popular  affec- 
tion, grasping  the  earth  with  its  roots,  and  spreading  above  its 
sheltering  canopy.  Such  were  the  three  organic  acts  of  the 
British  Government:  Magna  Charta  in  1215,  the  Petition  of 
Right  in  1645,  and  the  Bill  of  Rights  in  1688, — neither  of 
them  the  invention  of  any  man  or  set  of  men,  neither  of  them 
professing  to  create  new  rights,  but  each  proclaiming  itself  a 
fresh  and  solemn  declaration  of  ancient  law  and  custom. 

These,  therefore,  have  flourished  through  the  centuries,  and 
are  yet  green  and  growing.  The  Constitutions  that  were  the 
offspring  of  the  French  Revolution, — the  creations  of  ingenious 
men  undertaking  to  provide  for  the  future  whilst  disregarding 
the  past, — perished  with  the  hour  that  produced  them.  Their 
authors  thought  themselves  wiser  than  the  law,  wiser  than 
time.  Their  elaborate  machines,  with  their  cunningly-con- 
trived checks,  balances,  wheels,  and  springs,  would  not  Avork. 
Events,  and  the  genius  of  the  French  people,  have  made  a 
different  sort  of  Constitution  for  France. 

So  entirely  is  a  constitution  the  outgrowth  of  the  character 
of  a  nation,  as  influenced  by  circumstances,  that  no  man  or  set 
of  men,  convened  for  the  purpose,  can  provide  fully  for  the 
wants  of  the  future.  These  must  be  met  and  satisfied  by  the 
men  of  the  future ;  and  they  will  either  abolish  a  plan  of  go- 
vernment that  does  not  suit  them,  or  alter  it  until  it  does :  for 
a  government  is  for  the  people, — hot  the  people  for  a  govern- 
ment,— which  must  be,  not  a  fetter,  but  a  dress, — giving  pro- 
tection, but  permitting  easy  and  free  motion.  The  less  there 
is  in  it  that  is  ncAV,  the  more  likely  it  is  to  be  permanent.  But 
its  character  can  hardly  be  considered  established  until  it  has 
been  tried  by  prosperity  and  by  adversity,  for  it  was  intended 
for  both.  When  it  has  stood  the  strain  of  poverty  and  wealth, 
of  obedience  and  treason,  of  peace  and  war,  foreign  and  do- 
mestic, and  under  it  the  nation  has  grown  constantly  in  power 
and  civilization,  such  a  government,  like  a  mountain  hoary 
with  age,  yet  covered  anew  with  young  life, — like  a  river  ever 
full  and  ever  flowing  towards  the  ocean  of  the  future,  and  ever 
bountiful  of  benefits, — ceases  to  be  regarded  as  the  work  of 
man.     Nature  adopts  it  gladly  into  her  race,  and  gives  it  rank 


20  THE     TRIAL     OF     THE     CONSTITUTION. 

Avith  Andes  and  Ararat,  with  the  Nile  and  the  Mississippi. 
Such  was  the  Constitution  of  the  great  Indian  Empire  which 
flourished  for  thousands  of  years  before  our  anti(juity  began  ; 
such  that  of  Rome,  the  fountain  of  modern  European  law  ;  and 
such  is  the  Constitution  of  England. 

It  is  an  unwi'itten  Constitution,  by  which  is  meant  the  cus- 
tom of  the  nation  in  organic  law,  to  be  gathered  from  acts  of 
Parliament,  the  practice  of  the  Government,  historical  pre- 
cedents, and  the  decisions  of  the  courts.  A  written  constitu- 
tion is  one  constructed  by  one  man  or  an  assembly  convened 
for  the  purpose,  granting  and  distributing  political  power,  and 
providing  securit}^  for  personal  rights.  It  has  two  inherent 
defects, — it  cannot  adequately  provide  for  the  future,  and  its 
meaning  is  necessarily  uncertain.  No  man  or  convention,  or 
single  generation,  can  furnish  wisdom  and  knowledge  to  foresee 
all  exigencies  that  may  arise,  and  supply  the  needed  powers  to 
meet  them,  and  it  is  impossible  to  use  language,  so  clear  and 
explicit,  as  to  exclude  doubt  as  to  the  meaning,  often,  of  the 
most  important  clauses.  Every  English  statute  cost  thousands 
of  pounds  in  litigation  before  its  construction  was  settled,  and 
an  eminent  counsel  once  said,  that  he  could  drive  a  coach  and 
six  through  any  that  could  be  written.  But  there  is  no  doubt 
about  a  custom,  an  immemorial  usage,  which  time  and  habit 
have  impressed  upon  all  minds. 

Whilst,  therefore,  every  statute  gives  rise  to  disputes  about 
its  meaning,  the  difficulty  in  administering  the  common  law,  is 
not  in  the  law  but  in  its  application  to  facts.  For  this  reason 
the  idea  of  codifying  the  laAv  has  been  generajly  abandoned, 
as  likely  to  cause  more  uncertainty  than  it  can  prevent,  and 
reliance  on  precedent  is  preferred,  however  cumbrous  its  mass 
must  become  in  time.  After  a  certain  period,  leading  cases 
are  eliminated,  Avhich  embody  principles,  and  the  undergrowth 
perishes,  for  time  destroys  what  it  does  not  need ;  as  a  forest 
is  thinned  by  the  nature  of  the  soil.  A  code  must  still  be 
construed,  and  each  construction  becomes  a  precedent.  A 
new  crop  of  precedents  is  thus  produced,  not  out  of  the  past, 
but  out  of  the  brain  of  the  codifier,  and  what  that  crop  will  be, 


A     WRITTEN     CONSTITUTION.  21 

no  one  can  tell;   as  when  a  wood  is  cut  down,  no  one  can  toll 
what  sort  of  trees  wUl  grow  in  its  stead. 


The  Constitution  of  this  country  is  _yet  young.  It  is  young 
in  time,  for  it  is  less  than  a  centui-y  old ;  it  is  young  in  expe- 
rience, because  it  has  not  gone  throuo;h  the  testina;  trials  of 
great  dangers.  It  Avas  unavoidably  a  written  Constitution. 
It  was  the  creature  of  events  that  made  it  necessary  to  com- 
bine new  things  with  the  old,  and  to  provide  for  a  future  that 
must  be  different  from  the  past.  The  condition  of  the  people 
was  changed  suddenly,  and  for  that  reason  so  was  their  go- 
vernment. The  stream  of  precedent  was  rudely  stopped,  and 
for  the  gently  moulding  touch  of  time  was  substituted  the 
constructive  hand  of  experiment.  Not  rashly  or  hastily  was 
the  work  done,  but  prudently  and  anxiously,  by  men  who 
brought  to  its  performance  great  abilities,  much  learning,  long 
experience,  and,  above  all,  a  pure  and  lofty  purpose.  But 
they  were  men,  and  no  match  for  the  centuries.  They  were  an 
assembly  called  fi'om  the  fleeting  present,  and  not  so  wise  as 
the  generations  of  the  past.  Shall  we  wonder,  should  it  hap- 
pen, that  they  were  not  so  Avise  as  the  generations  of  the 
future  ?  They  gave  at  least  one  proof  of  w^isdom  by  showing 
their  reverence  for  the  past.  Unlike  the  constitution-mon- 
gers of  the  French  Revolution,  what  they  could  retain  of  its 
inherited  treasures  they  did. 

Those  treasures  Avere  such  principles  of  the  English  Consti- 
tution as  Avere  consistent  Avith  the  circumstances  of  the  Ameri- 
can people.  The  law  is  the  birthright  of  an  Englishman,  and 
Avherever  he  plants  a  colony,  he  carries  it  Avith  him,  so  far  as 
it  is  applicable  to  the  colonial  state.  The  colony  is  deemed  a 
part  of  the  ancient  dominions,  and  the  subjects  inhabiting 
them  retain  their  former  rights  and  privileges.*  The  first 
attention  of  the  colonists  of  Ncav  England  Avas  directed  to  the 
establishment  of  "  the  free  liberties  of  freeborn  English- 
men," and  they  proceeded  to  declare  their  rights  and  funda- 

*  1  Storv  on  the  Constitution,  |  103-110. 


22  THE     TRIAL    OF     THE     CONSTITUTION. 

mental  laws,  almost  in  the  language  of  Magna  Charta.* 
Tlieir  example  was  generally  followed  by  the  other  colonies, 
so  that  up  to  the  time  of  the  Revolution,  the  laws  and  cus- 
toms of  England  prevailed  among  them  not  only  because  they 
were  subjects  of  the  British  Government,  but  by  the  free 
choice  and  acts  of  the  people.  Under  these  laws  they  lived 
until  the  formation  pf  our  Constitution;  for  the  government  of 
the  Confederation  and  the  attempts  at  a  Union  which  preceded 
it,  did  not  affect  the  rights  of  the  people,  as  they  did  not  act 
on  individuals,  but  on  States,  and  by  means  of  their  authority. 
It  was  found  that  union  was  indispensable  to  safety,  and  that 
a  compact  or  league  of  sovereign  communities  was  not  a 
union,  neither  was  it  a  Government,  because  it  was  deficient 
in  power  to  enforce  its  own  laws,  and  a  Government  that  could 
make  itself  obeyed  and  respected  was  as  necessary  as  union. 

The  difficult  task,  therefore,  imposed  by  the  Revolution  was 
to  transfer  to  a  new  Government  of  the  Union,  the  control 
over  persons  and  things,  for  national  purposes,  which  had  been 
exercised  severally  hj  the  Colonial  Governments,  without  en- 
croaching upon  the  proper  independence  of  the  Colonies,  or 
States,  as  they  became  under  the  Constitution,  and  at  the 
same  time,  to  preserve  to  the  people  all  the  civil  rights  and 
liberties  they  had  enjoyed  as  British  subjects. 

The  first  object  Avas  obtained  by  clothing  the  new  Govern- 
ment with  power  to  execute  its  laws  by  its  own  courts  and 
officers,  and  these  laws,  together  with  the  Constitution,  Avere 
declared  to  be  supreme  over  tlie  Avhole  country,  and  over  the 
Government  of  the  States.  The  second  Avas  provided  for  by 
limiting  the  authority  of  the  Federal  Government  to  national 
and  general  objects.  It  Avas  to  represent  the  Avliole  nation,  and 
Avas,  therefore,  to  act  only  upon  the  interests  of  the  Avhole. 
To  secure  the  precious  inheritance  of  English  freedom  and  its 
principles,  and  the  guards  by  Avhicli  they  had  been  protected, 
Magna  Charta  and  the  Bill  of  Rights  were  copied,  and  the 
trial  by  jury  and  the  habeas  corpus  made  parts  of  the  Con- 
stitution.    In  these  objects  the  chief  difficulty  was  the  combi- 

*  1  Story  on  the  Constitution,  |  59-163. 


A    WRITTEN     CONSTITUTION.  23 

nation  of  national  sovereignty  with  the  independence  of  the 
States,  of  local  and  general  power,  the  creation  of  a  har- 
monious Avhole,  to  be  at  the  same  time  a  nation  and  a  con- 
federacy. 

The  pressing  wants  of  the  time  could  only  be  supplied  by  a 
new  Government,  and  none  existed  that  would  supply  them. 
A  new  Government,  contrived  by  somebody,  to  satisfy  the 
present  need,  and  also,  if  possible,  to  provide  for  the  future ; 
that  is  to  say,  a  written  Constitution  had  become  a  necessity. 
The  people  were  convinced  of  this,  and  as  they  could  not 
possibly  make  a  Government  for  themselves,  they  chose  a 
Convention,  composed  of  their  wise  men,  to  make  one  for  them, 
to  contrive  a  machine  by  which  the  objects  above  stated,  of 
National  Union  and  of  private  liberty,  could  be  practically 
obtained  for  themselves  and  their  posterity  forever. 

The  Convention  had  before  them  a  certain  quantity  of  old 
material,  valuable  because  it  was  old  and  tried,  whick  they 
could  work  up.  They  had  the  Articles  of  Confederation, 
some  of  which  had  proved  useful ;  the  charters,  laws  and  con- 
stitutions of  the  Colonies,  the  common  law  of  England  and  the 
general  principles  of  the  English  Constitution  in  relation  to 
the  nature  of  political  power,  its  distribution  among  several 
departments,  and  the  appropriate  functions  of  each.  They 
used  all  these  liberally  and  discreetly,  but  still  the  effective 
machinery  was  wanted  to  endoAV  the  principles  with  life  and 
activity.  The  Convention  had  not  "  King,  Lords  and  Com- 
mons," and  were  obliged  to  invent  something  to  supply  their 
place.  In  performing  this  task,  they  were  led,  naturally  and 
necessarily,  to  adhere,  as  closely  as  circumstances  would 
permit,  to  the  English  model,  because  it  was  a  good  one,  and 
because  they  were  Englishmen  and  had  recently  been  English 
subjects. 

But  the  Convention  were  obliged  to  serve  two  masters,  first 
their  own  idea  of  what  was  best,  and  secondly  the  people,  who 
had  recently  been  at  Avar  with  England,  whose  passion  for 
liberty  was  at  the  time  excited  beyond  its  ordinary  state,  who 
were  to  pass  upon  the  Constitution,  and  would  probably  reject 
it  if   too  conservative  or  too  English  for   their  taste.     The 


24  THE     TRIAL     OF     THE     CONSTITUTION. 

invention  or  creation,  moreover,  of  an  entirely  new  system  of 
Government  is  a  superhuman  undertaking,  never  yet  at- 
tempted Avitliout  signal  failure,  if  indeed  it  ever  was  attempted, 
except  in  Utopias  of  Philosophic  dreams.  A  government  to 
work  well  in  practice  must  accord  not  only  with  new  circum- 
stances but  with  old  ideas  and  must,  therefore,  be  partly  new 
and  partly  old,  and  more  of  it  must  be  old  than  new,  for  the 
ideas  of  the  past  outnumber  those  of  the  present.  Our  ances- 
tors, therefore,  followed  the  English  model  as  closely  as  they 
dared,  not  perhaps  as  closely  as  they  wished.  The  Judiciary 
is  entirely  English  in  most  of  its  features.  The  Legislature  is 
composed  of  two  houses  like  the  English  Parliament.  The 
House  of  Representatives  is  substantially  the  same  as  the 
House  of  Commons,  and  the  Senate  in  its  limited  number,  in 
its  longer  term  and  mode  of  appointment,  has  some  faint 
resemblance  to  the  House  of  Lords.  It  is  the  conservative 
feature  of  the  Government  to  represent  the  States  as  such, 
and  was  intended  to  exercise  a  restraining  influence  upon 
the  House,  which  being  elected  directly  by  the  people,  is 
more  under  the  influences  of  popular  passion.  The  hardest 
problem  was,  how  to  manage  the  Executive  power  inherent  in 
every  Government,  and  in  constructing  this,  the  Convention 
departed  most  widely  from  the  English  system.  Hereditary 
royalty  was  not  to  be  thought  of,  and  yet  they  were  obliged 
to  confer  royal  power.  A  new  machine  to  contain  and  apply 
it  must  therefore  be  contrived,  and  they  did  contrive  one, 
unique  in  its  character  ;  the  success  of  which  is  yet  doubtful. 

In  another  important  particular  the  Avork  of  the  Convention 
is  generally  thought  to  difi"er  from  the  English  pattern.  They 
constructed  a  Government  whose  powers,  it  is  said,  are  limited 
by  law.  Supreme  power,  the  eminent  donuiin,  must  of  course 
in  every  country  reside  in  the  people;  but  in  England  the 
whole  of  it  is  delegated  to  the  Government,  which  has  no 
legal  fetter  on  its  action,  but  is  theoretically  "omnipotent," 
though  the  right  of  revolution  or  the  right  of  resistance  to 
oppression  or  injustice  or  to  an  attempt  to  destroy  the  ancient 
laws  and  liberties  of  the  people,  impliedly  remains  with 
them,  of  necessity,  for  it  is  a  natural  right.     But   by  our 


A    WllITTEN     CONSTITUTION.  25 

system  the  people  are  supposed  to  have  intrusted  tlie  Govern- 
ment with  a  part  onl}^  of  their  power.  It  is  provided  that 
"the  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  arc  reserved  to 
the  States  respectively  or  to  the  people;"  that  is  to  say,  the 
powers  not  prohibited  to  the  States  are  reserved  to  them,  and 
the  powers  not  conferred  on  the  Government  are  reserved  to 
the  people. 

Among  the  powers  thus  reserved  to  the  people  is  that  of 
altering  the  Constitution  in  the  manner  prescribed  by  itself. 
In  England  the  Constitution  may  be  altered  by  Parliament. 
Here,  organic  changes  in  the  Government,  according  to 
received  opinions,  can  be  made  only  by  a  convention  elected 
for  the  purpose,  and  in  an  appointed  manner,  by  the  people  ; 
there,  they  can  be  made  by  an  assembly  also  elected  by  the 
people,  and  for  the  same  purpose,  since  it  has  the  same  power. 
In  both  cases  the  resort  is  to  the  people — that  is  to  say,  to 
popular  opinion  requiring  a  change.  The  difference  is  that  in 
England  the  whole  power  of  the  people  is  delegated  to  Par- 
liament, and  the  power,  therefore,  is  always  ready  for  action, 
whilst  with  us  it  can  only  be  made  available  by  a  difficult  and 
uncertain  process,  slow,  though  prompt  measures  may  be 
important,  and  uncertain  in  its  results,  because  the  consent  of 
three-fourths  of  the  States  or  of  the  people,  is  necessary 
before  an  alteration  can  be  made.  The  English  organic  law 
is  the  custom  of  the  Government.  It  is  in  no  danger  of  sud- 
den and  great  innovations,  for  it  is  the  nature  of  custom  or 
habit  to  change  slowly.  It  is  also  its  nature  to  be  constantly 
changing,  according  to  the  age,  circumstances,  and  mental 
condition  of  an  individual  or  a  nation.  Safe  and  gradual 
change  may  therefore  be  predicated  of  the  English  Consti- 
tution, and  such  in  fact  has  always  been  its  characteristic. 

But  how  can  our  Constitution  be  altered  when  alteration  is 
necessary  ?  It  is  a  code,  partly  of  old  and  therefore  custom- 
ary law,  but  partly  and  largely  of  new  contrivances.  The 
new  portions,  where  doubtful  in  their  meaning,  must  be  con- 
strued, and  therefore  may  be  moulded  by  the  practice  of  the 
Government  and  by  the  Courts,  and  thus  to  that  extent  the 


26  THE    TRIAL     OF    THE     CONSTITUTION. 

Constitution  may  be  altered  by  the  usage  of  the  Government, 
as  it  has  been.  The  Government  is  one  of  limited,  but  also 
of  implied  powers,*  and  this  affords  a  certain  latitude  for 
needed  change.  But  the  exigencies  of  the  future  may  require 
great  and  organic  changes ;  the  best  opinion  of  the  country 
may  demand  them,  a  majority  of  the  people  may  demand 
them,  and  the  necessity  for  them  may  be  obvious  to  all  men 
able  to  think  upon  the  subject,  which  nevertheless  may  not  be 
three-fourths  of  the  people  or  of  the  States.  Where,  then,  is 
the  remedy  ?  If  amendments  to  the  Constitution  are  really 
necessary  they  will  be  made.  But  the  conditions  imposed  by 
the  Constitution  require,  first,  that  two-thirds  of  both  houses 
of  Congress,  or  the  Legislatures  of  two-thirds  of  the  States 
shall  propose  amendments,  which  must  be  ratified  by  the 
Legislatures  of  three-fourths  of  the  States,  or  by  conventions 
in  three-fourths  of  them. 

It  will  be  difficult  to  satisfy  these  conditions,  yet  necessary 
changes  in  the  organic  law  must  be  made.  On  the  other  hand 
rash,  ignorant,  even  fatal  alterations,  in  times  of  popular  ex- 
citement, may  be  proposed  and  hurried  through  the  consti- 
tutional forms,  by  demagogues  controlling  the  masses  for  a 
time,  and  would  thus  become  a  part  of  the  Constitution  un- 
alterable, even  when  found  mischievous,  except  by  another 
doubtful  and  dangerous  appeal  to  three-fourths  of  the  States. 
The  provision  in  the  Constitution  for  amending  it  has  been 
called  a  safety-valve  to  prevent  the  explosion  of  the  passions 
of  the  people  in  revolutionary  violence.  But  the  efficacy  of  a 
safety-valve  depends  on  the  promptness  with  which  it  can  be 
opened  and  the  width  of  its  throttle.  If  defective  in  either  of 
these,  when  the  pressure  of  steam  is  too  high  the  boiler  will 
burst. 

The  English  Constitution  has  been  going  through  a  constant 
process  of  change  for  eight  hundred  years,  dating  from  the 
Norman  conquest.  All  the  changes  have  been  beneficial,  and 
though  some  have  been  accompanied  by  violence,  they  have 
all  been  made  by  Parliament.     No  convention  for  this  purpose 

*  1  Kent's  Comm.,  23G  ;   Story  on  Constitution,  ^  433. 


A    WRITTEN     CONSTITUTION.  27 

has  ever  been  elected  by  the  people  to  exercise  their  reserved 
power.  Yet  feudalism  and  Romanism  have  been  abolished, 
Plantagenets,  Tudors,  and  Stuarts  controlled,  the  prerogative 
of  the  King  diminished,  the  succession  to  the  Crown  altered, 
the  powers  of  the  Legislature  enlarged,  the  tenure  of  the 
Judiciary  changed,  and  the  Avhole  machinery  of  the  Govern- 
ment modified  to  secure  the  rights  and  liberties  of  the  people 
and  to  suit  their  growth  and  progress.  Through  all  these 
stormy  centuries  this  machinery  has  worked  well,  because  the 
alterations  have  been  skilfully  made,  as  Lord  Coke  says,  "  by 
an  infinite  number  of  grave  and  learned  men  and  by  long  ex- 
perience." The  process  is  still  going  on.  "Grave  and 
learned  men  " — the  best  minds  of  the  nation — are  now  ponder- 
ing the  necessity  for  further  change,  what  that  change  shall 
be  and  how  it  can  be  safely  and  beneficially  made.  They 
anxiously  consult  the  indications  of  popular  sentiment,  though 
they  summon  no  conventions  of  the  people.  There  is  no  ne- 
cessity for  these,  as  Parliament  is  intrusted  already  with  the 
whole  power  of  the  people,  and  is  responsible  to  them.  The 
action  of  Parliament  is  therefore  free ;  members  are  not  dele- 
gates to  register  a  foregone  conclusion,  but  meet  to  deliberate, 
to  compare  opinions,  to  gain  light  and  knowledge.  It  is 
almost  impossible,  therefore,  that  under  the  operation  of  the 
principle  of  representation  and  of  a  free  press,  any  changes 
can  be  made  not  required  both  by  the  wants  and  the  opinions 
of  the  people,  or  that  when  made  they  will  be  resisted. 

The  Amendment  Article  in  our  Constitution  has  not  pre- 
served us  from  civil  war,  though  the  war  turned  on  construc- 
tion as  to  the  power  of  Congress  over  the  Territories.  The 
safety-valve  did  not  work,  and  the  boiler  has  burst.  The 
valve  could  not  be  opened,  and  had  it  been,  would  not  have 
let  off  the  steam.  The  rebellion  has  tested  and  illustrated  its 
merits  as  a  means  of  peacefully  altering  the  Constitution. 

The  Convention  were  anxious  to  protect  the  Government 
they  had  made  from  the  rash  spirit  of  innovation  inherent  in 
a  democracy.  They  therefore  interposed  barriers  to  restrain 
it.  But  it  is  a  spirit  that  cannot  be  restrained  by  any  demo- 
cratic means.     A  Government  powerful  enough  to  resist  the 


28  THE     TRIAL     OF     THE     CONSTITUTION. 

people,  is  not  a  democracy.  Instead  of  a  dam  to  back  up 
the  rushing  flood  of  passion,  until  it  should  acquire  force 
enough  to  sweep  away  all  obstructions,  it  would  have  been 
Aviser  to  make  channels  and  conduits  to  give  it  easy  and  safe 
vent.  This  part  of  the  Constitution  Avas  new,  and  had,  there- 
fore, never  been  tried  by  experience.  There  is  nothing  like 
it  in  the  English  model,  or  in  any  other  model  known  to 
history.  Reserved  powers  of  the  people,  dormant  till  roused 
by  a  great  crisis,  then  suddenl}''  evoked  to  deliberate  in  the 
midst  of  a  great  crisis,  on  profound  and  difficult  questions  of 
constitutional  law  and  political  science,  surely  this  was  a  new 
thing  under  the  sun.  It  looks  well  enough  on  paper.  This 
Constitution  of  ours,  thought  the  Convention,  is  a  wise  and 
good  one  ;  it  should  therefore  be  guarded  and  preserved  with 
vigilant  care.  But  time  may  reveal  defects  in  it  that  ought 
to  be  remedied  ;  may  create  wants  under  it  that  must  be  sup- 
plied. The  Constitution,  therefore,  should  be  open  to  altera- 
tions, but  tliey  should  be  made  only  after  mature  reflection. 
To  secure  the  requisite  caution,  the  people  must  not  be  permit- 
ted to  vote  directly  upon  proposed  changes,  but  must  act 
through  their  representatives  in  Congress,  or  in  the  State 
Legislatures,  and  through  conventions  chosen  for  the  purpose. 
Moreover,  as  the  Constitution  is  the  birthright  of  the  whole 
people,  it  should  not  be  altered  by  a  mere  majority  whicli  may 
be  factitious,  or  gained  by  undue  influence  or  the  result  of 
transient  public  excitement.  The  interests,  the  opinions  and 
the  feelings  of  a  large  minority  might  thus  be  unjustly  disre- 
garded, Avhich  minority  might  be  composed  of  a  portion  of  the 
people  best  entitled  to  respect.  As  the  proposed  alterations 
may  affect  the  rights  of  the  States  and  their  relations  to  tlie 
General  Government,  they,  as  such,  would  in  such  a  case,  be 
entitled  to  an  influential  voice,  though  the  vote  of  a  small 
State  would  weigh  as  much  as  that  of  a  large  one.  All  tliese 
points  arc  carefully  met  and  provided  for  in  Article  Y  of  tlie 
Constitution. 

"  The  Congress,  whenever  two-thirds  of  both  Houses  sliall 
deem  it  necessary,  shall  propose  amendments  to  tliis  Constitu- 
tion, or  on  the  application  of  tlie  Legislatures  of  two-thirds  of 


A    WRITTEN     CONSTITUTION,  29 

tlic  several  States,  shall  call  a  convention  for  proposing 
amendments,  "which,  in  either  case,  sliall  be  valid  to  all  intents 
and  purposes  as  part  of  this  Constitution  when  ratified  by  the 
Legislatures  of  three-fourths  of  the  several  States,  or  by  eon- 
ventio7is  in  three-fourths  thereof,  as  the  one  or  the  other  mode 
of  ratification  may  be  proposed  by  Congress.'' 

The  Avhole  value  of  this  plan  depends  on  its  practical  utility. 
It  sets  in  motion  enormous  forces.  Can  it  restrain  and  guide 
them  ?  Will  they  alloAV  such  a  bit  to  be  put  into  their  mouths 
at  all ;  or  if  they  do,  where  is  the  arm  strong  enough  to  hold 
them  to  the  track  when  lashed  to  their  speed?  Questions 
that  involve  State  rights  and  popular  rights,  the  power  of  the 
people  and  the  power  of  the  Government,  affect  large  interests 
and  excite  strong  passions.  An  impetuous  and  influential 
minority  may  think  itself  endangered  or  aggrieved,  a  large 
majority  may  demand  a  change,  yet  despair  of  obtaining  the 
requisite  two-thirds  of  Congress  or  of  the  State  Legislatures, 
or  a  party  controlling  these,  may  refuse  to  take  the  initiatory 
steps,  doubtful  of  the  result,  and  preferring  to  carry  its  mea- 
sures by  a  vote  of  Congress.  Yet  that  vote  may  be  either  a 
criminal  usurpation  of  power,  or  a  modification  of  the  Consti- 
tution imperatively  demanded  by  circumstances,  and  in  either 
case  it  is  sure  to  be  made  a  party  question.  It  would  be  so 
difficult  to  subject  such  a  question  to  the  process  required  by 
the  Constitution,  that  the  process  cannot  be  relied  on.  It 
would  fail  when  most  needed,  because  then  neither  party 
would  appeal  to  it.  If  they  refused,  the  question  must  be 
decided  by  Congress,  or  not  at  all,  and  a  decision  by  Congress, 
when  its  authority  is  denied,  settles  nothing  ;  may,  in  a  flagrant 
case,  justify  resistance,  and  in  any  case  affords  incitements 
and  arguments  to  meditated  and  planned  rebellion,  which, 
Avithout  such  show  or  reality  of  right  might  never  have  been 
thought  of.  For  clear,  unquestionable  authority  is  obeyed 
even  when  severely  exercised,  whilst  doubtful,  disputed,  or 
manifestly  illegal  power  is  resisted  on  slight  grounds,  or  even 
only  because  it  is  illegal. 

The  obstacles  therefore  to  be  overcome,  before  the  tribunal 
contemplated  by  the  Constitution  for  deciding  upon  amend- 


30  THE    TRIAL     OF    THE     CONSTITUTION. 

ments  to  it,  can  be  created,  are  so  formidable,  that  they  tend 
rather  to  excite  than  to  repress  the  spirit  of  revolution,  whilst 
they  are  not  strong  enough  to  resist  it.  In  England,  Parlia- 
ment is  a  "convention  to  amend  the  Constitution,"  duly  ap- 
pointed, always  in  existence,  and  always  competent  to  enter- 
tain proposals  for  needed  alterations,  with  full  authority  to 
decide  them.  Possessed  of  undoubted  poAver,  Parliament  is 
likely  to  act  with  moderation  and  caution  on  a  subject  so 
momentous,  so  surrounded  by  watchful  intelligence,  by  great 
interests  and  opposing  forces,  because  any  action  at  all  implies 
great  responsibility.  But  in  the  conduct  of  governments  as 
of  individuals,  it  is  often  only  the  first  step  that  counts.  A 
government  that  is  guilty  of  usurpation,  has  already  thrown 
off  responsibility,  and  relied  for  success  on  other  supports  than 
the  law  aifords.  This  is  revolution  ;  and  when  a  government 
cannot  be  altered  to  satisfy  the  people,  revolution  is  a  neces- 
sity.* It  is  a  remarkable  fact  that  in  conservative  England, 
so  steadfast  in  adhering  to  ancient  usage,  the  power  to  make 
changes  is  ahvays  ready  to  act,  without  question  or  form  or 
delay,  and  the  organic  law  is  thus  pliable  and  responsive  to 
the  wishes  of  the  people;  whilst  in  democratic  America,  inno- 
vation is  guarded  against  with  such  jealous  care,  that  it  is 
doubtful  whether  the  means  provided  by  law  for  making 
needed  changes  can  ever  be  employed. 

It  is  also  doubtful  whether  they  can  ever  be  used  with  suc- 
cess, so  trammelled  are  they  with  conditions  and  so  dangerous 
are  they  likely  to  be  in  action.  The  Constitution  has  indeed 
been  once  amended  in  a  legal  manner.  But  this  was  proposed 
by  the  first  Congress  that  sat  under  it,  composed  in  part  of 
the  men  who  made  it,  and  to  satisfy  the  known  wishes  of  some 
of  the  States  by  which  it  was  ratified.  No  popular  excite- 
ment was  connected  with  the  amendments,  no  partisan  or  sec- 
tional interests  or  passions.  They  Avere,  indeed,  so  nearly 
contemporaneous  with  the  Constitution  as  to  be  substantially 
part  of  the  original  structure.  The  ratification  of  the  amend- 
ments was  made  under  the  same  influences  and  in  the  same 

*  Storj  on  the  Constitution,  ^  1827. 


A    WRITTEN     CONSTITUTION.  31 

mood  of  tlie  popular  mind  which  had  induced  the  acceptance 
of  the  Constitution,  and  the  whole  was  thus  virtually  one  act. 
There  was,  moreover,  nothing  in  the  amendments  themselves 
to  divide  opinion  ;  for,  as  all  parties  agreed,  they  were  really 
implied  in  the  first  plan.  For  these  reasons,  the  fact  that 
they  were  peaceably  adopted  in  the  appointed  mode  is  no  test 
of  it,  and  gives  no  assurance  of  its  future  success. 


The  condition  of  the  country  has  greatly  changed  since  the 
war  of  Independence.  From  three  millions  Ave  have  grown  to 
be  thirty-four  millions  of  people,  and  from  thirteen  to  be  thirty- 
four  States.  Trade  and  manufactures  have  been  created  and 
have  flourished,  and  with  them  wealth  has  increased.  These 
have  been  gathered,  for  the  most  part,  in  the  large  towns,  and 
with  them,  also,  masses  of  ignorant  population ;  so  that  the 
cities,  whilst  they  are  the  centres  of  activity,  intelligence,  and 
capital,  with  all  their  influences  increased  by  concentration, 
are  also  centres  of  that  power  which  is  most  dangerous  in  a 
democracy.  From  the  varied  pursuits  of  the  people,  indicated 
by  natural  causes,  have  arisen  conflicting  interests,  and  con- 
trasted manners  and  social  forms,  in  different  parts  of  the 
country.  Slavery  and  the  plantation  have  created,  in  the 
South,  ideas,  habits  and  desires  that  distinguish  it  from  the 
North ;  whilst  the  agricultural  Northwest  is  scarcely  less  di- 
vided from  the  commercial  and  manufacturing  East.  These 
characteristics  show,  also,  difi'erent  stages  of  civilization.  New 
•  England  is  the  country  of  schools,  colleges,  towns,  manufac- 
tures, and  concentrated  population,  where  thought  is  active 
and  intense,  because  of  universal  education,  general  comfort, 
diversified  industry,  and  the  collision  of  mind  caused  by  easy 
and  constant  intercourse.  In  the  Northwest  the  people  are 
scattered  on  isolated  farms  over  a  vast  expanse.  They  are  in- 
telligent and  energetic,  but  rude  and  uncultivated — enthralled 
by  a  single  interest  and  occupation.  The  electric  currents  of 
thought  and  knowledge  do  not  freely  reach  them,  and  there- 
fore opinion  forms  itself  slowly,  and  lags  behind  the  quick  and 
eager  spirit  of  the  East.     In  the  South  education  is  confined 


32  THE    TRIAL     OF    THE     CONSTITUTION. 

to  a  small  class,  governed  by  a  supreme  influence  and  made 
captive  by  a  social  system  which  directs  all  thought  and  en- 
deavor to  one  idea  and  one  policy. 

The  Government  may  press  unequally  on  these  powerful 
sections,  and  may,  justly  or  unjustly,  resist  their  respective 
demands.  A  change  may  be  necessary,  to  allay  discontent, 
by  yielding  to  reasonable  wishes  and  thus  prevent  insurrec- 
tion and  civil  war.  Some  contrivance  is  needed,  by  which  the 
mature  and  enlightened  opinion  of  the  people  may  not  only  act 
on  the  measures  of  Government,  but  also  alter  the  Constitu- 
tion; for  unless  this  can  be  done  according  to  changing  circum- 
stances and  opinions,  physical  force  is  the  only  resort.  But 
Avhat  alterations  to  make  and  what  will  be  their  effect,  are 
difficult  questions,  of  which  not  the  many  but  the  few  are  com- 
petent to  judge.  They  never  have  originated  with  the  many, 
but  have  always  been  the  work  of  individuals,  or  of  a  very 
small  and  select  class.  This  is  true  of  every  change  in  the 
British  Constitution,  and  every  part  of  its  machinery,  from 
Magna  Charta  down  to  the  Reform  Bill.  They  were  all  intro- 
duced, not  by  the  people,  but  to  meet  their  wishes  and  supply 
their  wants.  They  were  never  submitted  to  them  for  discus- 
sion or  decision,  but  were  contrived  and  provided  for  them  by 
heads  wiser  than  their  own,  and  then  adopted  by  them,  be- 
cause found  to  answer  their  purpose. 

The  average  intelligence  of  the  American  people  is  very 
high — far  higher  than  that  of  any  other  in  the  world.  They 
can  appreciate  the  benefits  of  good  government,  and  can  per- 
ceive defects  in  it ;  but  it  is  quite  a  different  thing  to  be  able 
to  furnish  a  remedy.  This  requires  mental  power  and  culti- 
vation of  a  higher  order.  The  principles  of  government  are  a 
science  ;  so  also  is  jurisprudence,  and  so  is  constitutional  law, 
depending  on  both,  and  to  be  interpreted  by  the  lights  of  both. 
No  small  knowledge  of  each  is  required  safely  to  alter  the 
Constitution.  The  multitude,  rich  or  poor,  do  not  possess  the 
knowledge.  Few  of  them  have  ever  read  the  Constitution  or 
know  anything  of  the  various  questions  that  have  arisen  under 
it,  or  the  reasoning  by  which  they  have  been  settled.  Informa- 
tion of  this  sort  is  not  the  attribute  of  the  many.    No  property 


A    WRITTEN     CONSTITUTION.  33 

qualification,  however  liigli,  would  secure  a  class  that  possess 
it.  Neither  are  the  masses  capable  of  abstract  thought,  or 
able  to  anticipate  the  tendencies  and  remote  consequences  of 
changes  in  organic  law.  They  are  not  very  well  acquainted 
with  history,  nor  can  they  read  or  understand  Montesquieu, 
De  Lohne,  Burke,  Vattell,  Kent,  and  Story.  They  can  per- 
ceive effects,  but  only  when  they  happen*;  they  can  judge  of 
the  results  of  a  law,  but  can  rarely  refer  them  to  the  true 
causes.  They  know  what  they  need,  and  can  feel  injustice 
and  oppression.  They  know  the  difference  between  anarchy 
and  order,  betw^een  poverty  and  prosperity,  between  corrup- 
tion and  honesty,  between  wise  men  and  fools,  between  virtuous 
men  and  villains ;  but  of  these  things,  how  to  secure  the  good 
and  how  to  avoid  the  evil,  they  do  not  know. 

They  require  liberty  and  security,  but  the  machinery  by 
which  these  are  attained,  they  cannot  contrive,  and  even  when 
it  is  constructed  for  them,  they  can  judge  of  it  only  by  the 
effects  it  produces.  For  example :  an  intelligent  people  de- 
mands political  power,  or  the  privilege  of  influencing  the 
measures  of  government.  But  the  difficulty  is  how  to  give 
them  this  power,  and  to  contrive  some  means  by  which  they 
can  exercise  it.  This  end  has  never  yet  been  fully  accom- 
plished, only  some  app'roximation  to  it,  by  clumsy  and  ineffi- 
cient means.  The  American  people  think  they  have  got  it, 
because  they  have  universal  suffrage  and. the  ballot-box.  Per- 
haps they  have  only  got  a  sham  instead  of  a  reality,  and  the 
result  of  universal  suffrage  and  the  ballot-box  has  been,  to 
place  their  power  beyond  their  control,  in  a  few  unworthy  and 
irresponsible  hands.  An  intelligent  people  demand  of  right, 
power,  not  only  over  the  action  of  Government,  but  its  form, 
that  it  may  be  moulded  to  suit  their  wants  and  wishes.  They 
think  they  have  got  this  power  in  the  fifth  article  of  the  Con- 
stitution. Perhaps  it  may  turn  out  that  the  article,  instead 
of  an  instrument,  as  was  intended,  is  an  iron  fetter,  that  must 
be  broke,  before  free  action  can  be  attained. 

Unless  connected  with  real  grievances,  abstract  questions  of 
government  do  not  interest  the  people.  They  are  beyond  the 
habitual  range  of  their  thought,  and  they  cannot  be  induced  to- 


34  THE    TRIAL    OF    THE    CONSTITUTION. 

entertain  them  or  act  upon  them  at  all.  Therefore,  in  quiet 
times,  appropriate  to  the  consideration  of  the  principles  of 
government,  such  topics  cannot  be  discussed  'with  any  prospect 
of  securing  such  action  as  the  Constitution  requires.  To  put 
its  cumbrous  machinery  in  motion,  the  people  must  be  roused, 
and  as  the  most  important  organic  changes  are  generally  con- 
nected with  the  interests  of  sections  or  of  classes,  the  people 
are  very  likely  to  be  roused  by  them,  to  be  divided  into  parties, 
to  be  influenced  by  passion.  They  thus  become  a  very  unfit 
tribunal  to  decide  such  questions,  Avliich  are  not  likely  to  be 
tried  on  their  merits.  The  contest  would  be  for  victory,  not 
for  truth,  a  wide  field  and  ample  opportunity  would  be  given 
to  the  arts  of  demagogues,  and  how  far  the  struggle  would 
go,  and  what  would  be  its  result,  no  one,  at  the  beginning  of 
it,  could  predict. 

Yet  to  such  a  tribunal  does  the  Constitution  submit  organic 
changes,  and  such  a  struggle  does  it  invoke.  First  in  Congress 
or  in  the  State  Legislatures  the  question  must  be  debated,  by 
which  the  alarm  is  sounded.  Then  it  must  be  discussed  before 
the  people,  that  a  convention  be  elected.  Then  debated  again 
in  that  convention.  Then  again  before  the  people  or  in  the 
State  Legislatures.  And  all  these  operations  are  to  be  per- 
formed by  the  same  people  and  by  the  same  leaders  ;  for  lead- 
ing party  men  would  be  the  managers  of  the  process  through- 
out. Why  might  not  the  subject  be  safely  committed  to  Con- 
gress, a  body  as  much  elected  by  the  people  as  a  convention, 
and  therefore,  as  likely  to  represent  their  wishes  ?  What  is 
the  difference  between  the  power  of  the  people  delegated  to 
Congress  and  the  power  of  the  same  people  reserved  to  them- 
selves, except  that  the  former  is  always  ready  to  act  when  an 
emergency  makes  it  necessary,  and  the  latter  cannot  act  with- 
out hindrances  and  delay. 

Congress  is  more  amenable  to  the  control  of  the  people  tlian 
the  convention  proposed  by  the  Constitution  is  likely  to  be, 
because  the  former  is  a  permanent  branch  of  the  Government, 
elected  at  short  intervals,  so  that  at  every  election  it  is  sub- 
jected to  the  popular  conti'ol.  The  convention  is,  indeed,  to 
be  chosen  by  the  people,  and  its  work  to  be  submitted  to  them 


A    WRITTEN     CONSTITUTION.  85 

for  ratification.  That  done,  however,  the  control  of  the 
people,  over  the  convention  and  over  the  subject,  ceases.  The 
amendment  once  made,  however  injurious  it  may  prove,  is 
irrevocable,  except  by  another  convention  elected  by  the  same 
difficult  forms ;  for  the  reserved  power  of  the  people  having 
acted,  returns  to  its  prison  and  cannot  again  act,  till  sum- 
moned in  the  appointed  manner.  Is  not  this  power  too  much 
hampered  to  be  of  use  when  most  needed  ? 

In  England  Parliament  wields  the  whole  power  of  the  na- 
tion. But  in  England,  as  everywhere  else,  when  the  privi- 
leges of  the  people  are  violated,  and  their  wishes  disregarded 
by  the  Government,  there  exists  the  right  of  resistance, — a 
right  often  exercised  in  English  history,  and  therefore  a  cus- 
tom and  part  of  the  unwritten  law,  undefined,  unprovided  Avith 
legal  means  for  its  exercise,  but  denied  by  no  one.  This  is 
the  reserved  power  of  the  English  people,  and  it  is  always 
ready  for  use,  without  being  trammelled  by  forms,  votes,  con- 
ventions, or  ratifications.  By  its  employment,  at  long  inter- 
vals, the  English  Constitution  has  grown  up  to  its  present 
symmetry  and  strength.  Coupled  with  the  right  of  suifrage, 
this  implied  and  dormant  power  is  a  constant  check  on  Parlia- 
ment, whilst  the  unquestioned  legal  authority  of  Parliament 
is  a  check  on  the  people.  They  influence  every  measure 
of  Government  through  the  press,  the  elections,  and  other 
organs  of  opinion,  whilst  every  law  aifects  the  interests  of 
members  of  Parliament.  These  do  not  owe  their  influence  in 
the  community  to  their  seats  in  the  Legislature,  but  are  in  the 
Legislature  because  of  their  influence  in  the  community,  de- 
rived from  rank,  birth,  wealth,  and  character.  Land,  trade, 
manufactures,  and  labor,  are  all  represented  in  Parliament. 
Identified  thus  with  the  great  interests  of  every  class  of  the 
people, — informed  of  their  sentiments,  and  controlled  by  their 
votes, — no  measure  is  likely  to  be  adopted  by  Parliament  in 
opposition  to  their  wishes,  or  in  violation  of  their  rights.  Even 
should  this  happen,  they  easily  acquiesce,  because  they  know 
that  errors  or  injustice  can  be  remedied  b}'^  another  Parlia- 
ment. The  interests  aff'ected  by  organic  changes  in  Govern- 
ment are  so   powerful  in   England,  that   changes   cannot  be 


36  THE     TRIAL     OF     THE     CONSTITUTION. 

made  unless  really  needed  and  demanded  by  the  people,  and 
then  they  can  be  made  by  a  safe  and  easy  process.  With  iis, 
the  process  is  so  diflficult  that  it  can  rarely  be  resorted  to  at 
all,  and  so  dangerous,  that  to  use  it  would  be  only  something 
better  than  civil  war,  for  it  would  be  likely  to  provoke  one. 
It  implies  more  intelligence,  and  more  dispassionate  calmness 
of  deliberation,  than  is  or  can  be  possessed  by  any  people. 


The  terrible  war  that  is  noAV  devastating  a  portion  of  our 
country,  and  creating  excitement  and  alarm  over  the  whole  of 
it,  affords  an  illustration  of  these  principles.  ]N^o  power  to  le- 
gislate for  the  Territories,  in  relation  to  slavery  or  anything 
else,  is  expressly  granted  to  Congress  by  the  Constitution. 
Its  words  are  :  "  The  Congress  shall  have  power  to  dispose 
of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  ijropertij  belonging  to  the  United  States." 
This  clause  received  a  construction  almost  contemporaneous 
with  the  Constitution  by  the  first  Congress  that  met  under  its 
authority,  which  prohibited  slavery  in  all  the  territory  then 
belonging  to  the  Government. 

The  pow'cr  of  Congress  over  the  Territories  was  assumed  as 
implied,  Avas  afterwards  constantly  exercised  both  to  permit 
and  to  prohibit  slavery  in  territories  subsequently  acquired, 
and  was  regarded  as  supreme  by  every  branch  of  the  Govern- 
ment, by  the  Courts,  and  by  all  writers  of  authority,,  until  a 
recent  date.  The  exercise  of  the  power,  on  some  occasions, 
gave  rise  to  serious  disputes,  but  the  existence  of  it  was  never 
questioned.  It  was  invoked  and  employed  in  a  very  signal 
niaiiiicr  to  settle  the  contest  between  Nortli  and  South  for  the 
control  of  the  Territories,  in  the  Missouri  Compromise  bill,  by 
which  slavery  was  excluded  from  all  the  region  north  of  a 
certain  line  of  latitude,  leaving  open  the  question  of  its  ad- 
mission south  of  that  line,  to  be  determined  afterwards,  as 
Congress  should  think  fit.  By  uniform  practice,  by  judicial 
decisions,  by  the  formal  consent  of  the  nation,  the  language  of 
the  Constitution,  if  vague,  was  thus  construed,  and  the  con- 
struction became  as  much  a  part  of  it  as  if  it  had  been  ex- 


A    WRITTEN    CONSTITUTION.  87 

pressly  made  so.  Unless  tliis  rule  be  acloptcd,  no  law  or  con- 
stitution can  ever  be  settled. 

The  Southern  people,'  however,  became  alarmed  at  the  in- 
creasing power  of  the  North,  and  at  the  growth  of  opinions 
hostile  to  slavery.  They  fancied  they  could  be  safe  only  by 
obtaining  more  political  influence  for  slavery,  and  that  this 
could  be  done  by  creating  more  slave  States.  They,  there- 
fore, aided  by  their  Northern  allies,  altered  the  Constitution 
by  an  act  of  Congress  which  repealed  the  Missouri  Compro- 
mise, on  the  alleged  ground  that  it  was  unconstitutional,  be- 
cause Congress  had  no  power  to  interfere  with  slavery  in  the 
Territories.  The  act  was  passed  without  consulting  the  people, 
and  Avithout  any  indication  whatever  that  public  opinion,  North 
or  South,  demanded  a  change.  This  high-handed  proceeding 
did  not  please  the  Northern  people.  It  defeated  the  party  by 
whom  it  was  executed,  and  caused  the  election  of  another  and 
new  party,  pledged  to  restore  the  law^  on  its  former  basis. 
But  the  South  refused  to  submit  to  the  decision  of  the  ballot- 
box.  Rather  than  submit,  they  determined  to  break  the  Union 
and  overthrow  the  Government.  They  have  attempted  to  do 
both,  and  the  result  is  war. 

Could  the  Convention  that  made  the  Constitution  have 
foreseen  the  controversy  to  which  the  clause  about  the  Terri- 
tories has  given  rise,  they  no  doubt  would  have  been  careful 
to  use  language  more  explicit,  as  they  would  have  done, 
if  gifted  with  a  prophetic  spirit,  in  other  parts  of  the 
instrument,  the  meaning  of  Avhich  has  since  been,  and  will 
be,  disputed.  But  their  human  powers  could  not  thus  peer 
into  the  future  and  foretell  the  trials  to  which  their  work 
was  to  be  subjected.  Had  the  power  been  expressly  given 
to  Congress  to  decide  constitutional  questions,  its  right  to 
govern  the  Territories  would  never  have  been  disputed, 
but  would  have  been  exercised  according  to  the  varying 
wishes  of  the  people.  If  exercised  in  a  way  to  wound  the 
sensibilities  or  to  injure  the  interests  of  a  section,  the  excite- 
ment thus  caused  would  not  have  been  armed  with  the  idea 
that  the  grievance  was  also  an  invasion  of  rights, — an  idea 
more  apt  to  rouse  passion  and  provoke  resistance  than  losses 


38  THE     TRIAL     OF     THE     CONSTITUTION. 

or  even  indignities.  The  probability  is,  therefore,  that  the 
South  would  have  submitted  to  the  success  of  the  Republican 
party  "without  resorting  to  forcible  resistance,  just  as  the 
North  had  submitted  to  the  repeal  of  the  Missouri  Compro- 
mise. Each  would  have  felt  that  an  undoubted  legal  power 
had  been  exerted,  and  would  have  felt,  also,  that  over  that 
power  each  had  its  fair  share  of  influence  or  control. 

But  the  power  of  Congress  Avas  denied,  and  the  South  would 
not  submit.  Why,  then,  was  not  the  machinery  provided  by 
the  Constitution  to  amend  it,  to  declare  its  true  meaning,  and 
thus  to  avoid  civil  war,  used  for  that  purpose?  The  reserved 
powers  of  the  people  were  ready,  indeed  eager,  to  act  on  the 
question.  They  were,  it  is  true,  fastened  up  in  their  prison 
house,  but  there  was  a  key  provided  which  could  unlock  the 
door  and  let  them  out.  How  did  it  happen  that  no  one 
thought  of  using  that  key  ?  The  reason  is  evident.  Each 
party  Avas  afraid  of  the  reserved  powers,  not  knowing  which 
they  might  attack.  Indeed,  neither  party  could  get  control 
of  the  key,  so  carefully  was  it  guarded.  Neither  North  or 
South  could  have  secured  a  vote  of  two-thirds  of  Congress  or 
of  two-thirds  of  the  States,  to  propose  an  amendment  to  the 
Constitution,  or  to  call  a  convention  for  that  purpose.  Nor 
could  such  a  convention  have  made  a  settlement  of  the  ques- 
tion at  issue,  that  would  have  been  ratified  by  three-fourths  of 
the  State  Legislatures,  or  of  the  people.  A  reference  to  such 
a  convention  was,  therefore,  useless,  and  neither  party  would 
have  consented  to  it.  The  South,  because  it  would  have  been  im- 
possible to  attain  its  objects ;  the  North,  because  it  had  the  power 
of  carrying  its  point  without  trying  a  doubtful  experiment. 

For  these  reasons  the  means  provided  by  law  for  making 
important  alterations  in  the  Constitution  are  not  likely  to  be 
enq)h;yed  with  success,  or  indeed  at  all.  Yet  changes  may 
be  rendered  necessary  by  the  war.  If  so,  they  will  be  made. 
A  Government  that  cannot  supply  the  Avants,  satisfy  the  in- 
telligence, or  accomplish  the  objects  of  a  people  so  eager,  so 
impulsive,  so  educated  as  ours,  cannot  be  permanent.  What- 
ever power  is  essential  for  these  purposes,  the  Government 
must  possess ;  Avhatevcr  part  of  its  machinery  cannot  perform 


A    WRITTEN     CONSTITUTION.  39 

its  functions,  must  be  altered.  A  fixed,  unchangeable  Go- 
vernment, for  a  changeable,  advancing  people,  is  impossible, 
and  Avere  it  not  so,  would  be  a  sad  spectacle.  Scarcely  less 
so,  however,  is  a  Government  so  contrived  that  neither  the 
"reserved  powers"  nor  the  knowledge  and  intelligence  of  the 
people  can  be  brought  to  bear  upon  it,  for  want  of  the  proper 
apparatus,  and  no  resource  is  left  but  an  appeal  to  arms. 


Is  such  the  nature  of  our  Constitution  ?  The  question  is 
forced  upon  us  by  the  present  condition  of  the  country.  Our 
career  of  peaceful  prosperity  has  been  interrupted  by  a  fear- 
ful civil  war.  Why  did  not  the  Government  prevent  that 
war  ?  Whatever  the  remote  or  immediate  causes  of  it,  there 
can  be  no  doubt  that  the  vast  majority  of  people  preferred 
peace  and  Union.  The  Government,  therefore,  failed  to 
represent  and  execute  the  wishes  of  the  people.  If  the 
people  loved  the  Union,  the  war,  as  it  was  not  their  work, 
must  have  been  the  work  of  men  by  them  intrusted  with 
power, — of  political  leaders  and  demagogues.  Therefore, 
under  the  Constitution  and  because  of  its  machinery,  politi- 
cians and  demagogues  can  rule  the  country  in  defiance  of  the 
people,  and  endanger  or  destroy  the  Government.  The  war 
might  have  been  checked  and  prevented  at  its  beginning  by 
the  President,  but  it  was  not.  Therefore,  the  Executive 
branch  of  the  Government  provided  by  the  Constitution  is 
defective,  since  it  has  failed  to  perform  its  work. 

How  the  war  will  end  no  one  can  predict,  or  what  may  be 
its  results.  But  we  may  be  sure  that  it  Avill  have  results  com- 
mensurate with  the  great  interests  it  has  drawn  within  its 
vortex,  with  the  deep  passions  it  has  aroused,  with  the  strong 
forces  it  has  set  in  motion.  How  are  these  to  be  met,  regu- 
lated, and  controlled  ?  By  the  Constitution  ?  It  has  already 
failed  to  perform  a  less  difiicult  task.  By  amendments  to  the 
Constitution  ?  Wherein  is  it  defective  ?  No  one  has  told  us, 
perhaps  no  one  can  or  will  tell  us.  But,  supposing  the  defects 
pointed  out,  who  is  to  contrive  a  remedy  ?  Are  there  any 
living  among  us,  now  known,  whose  intellect  and  knowledge 


40  THE     TKIAL     OF     THE     CONSTITUTION. 

fit  them  for  the  task,  or  whose  fame  and  position  inspire  such 
confidence,  that  they  could  by  any  possibility  be  called  on  to 
perform  it  ?  We  cannot  summon  Hamilton  and  Washington, 
Jay,  Madison  and  Marshall  from  their  graves  to  help  us,  and 
the  roll  of  our  "statesmen"  furnishes  no  such  names.  It 
would  be  impossible  in  any  condition  of  public  sentiment  likely 
to  exist,  to  employ  the  means  provided  in  the  Constitution  for 
its  amendment.  The  concurrence  of  two-thirds  of  Congress 
or  of  the  State  Legislatures,  in  any  proposed  plan,  could  not 
be  obtained,  neither  would  a  majority  of  three-fourths  of  the 
States  or  of  the  people,  accept  any  that  could  be  suggested. 
The  experiment  cannot  be  made,  and  would  be  a  rash  one  if 
it  could.  To  throw  the  Constitution  or  any  part  of  it,  affect- 
ing important  interests  and  sectional  or  party  passions,  to  be 
agitated  before  the  people,  excited  by  recent  civil  war,  would 
endanger  its  existence,  might  renew  the  struggle  on  new  fields, 
and  end  in  the  entire  destruction  of  the  Government,  and  the 
separation  of  the  Union  into  many  fragments,  instead  of  two 
as  now  threatened.  We  may  therefore  set  aside  the  constitu- 
tional provision  for  amendment,  as  unfit  for  use  now,  or  under 
any  circumstances  likely  to  be  created  by  the  war. 

But  we  cannot  throw  aside  the  natural  laws  that  govern 
society,  which  declare  that  a  government  is  made  for  a  people, 
not  a  people  for  the  government,  and  that  an  intelligent  people 
will  have  a  government  to  satisfy  their  intelligence.  Either 
an  acorn  or  the  Saxon  race,  planted  in  a  vessel,  made  of  either 
clay  or  paper,  too  narrow  for  its  expanding  force,  will  break 
the  vessel  and  become  severally  an  oak,  and  a  free,  progressive 
nation.  The  reserved  poAver  of  the  people  cannot  be  chained 
up  by  fifth  articles  or  by  any  forms  that  impede  its  action,  when 
action  is  needed.  It  may  well  be  doubted  whether  there  is  or 
can  be  such  a  thing  in  a  political  community,  as  the  reserved 
power  of  the  people,  or  whether  it  be  possible,  in  the  nature 
of  things,  to  contrive  a  government  which  can  be  limited  or 
restrained,  except  by  the  wishes,  convictions,  and'  interests  of 
the  nation,  expressed  by  custom,  by  votes,  by  tlie  press,  by 
silent  acquiescence,  or,  as  Carlyle  expresses  it,  by  "  not  re- 
volting," and  if  need  be,  by  forcible  resistance. 


A    WRITTEN     CONSTITUTION.  41 

A  government  must  be  checked  either  by  these  influences 
or  not  at  all.  The  received  theory  of  our  Constitution  is, 
that  it  is  alterable,  not  by  the  Government,  but  by  the  people. 
That  is  to  say,  it  cannot  be  altered  by  representatives  of  the 
people  assembled  in  Congress,  but  it  may  be  altered  by  repre- 
sentatives of  the  people  assembled  in  a  convention.  But 
suppose  Congress  made  an  alteration,  which  was  approved  and 
sustained  by  the  people ;  that  a  sudden  emergency  should 
arise,  when  the  Government  must  either  exert  unconstitutional 
power  or  be  destroyed.  Should  the  people  acquiesce,  what 
power  has  the  Constitution  to  protect  itself?  The  work  of 
Congress  can  only  be  undone  by  a  subsequent  Congress,  and 
will  be,  if  the  alteration  should  not  satisfy  the  people,  other- 
wise not.  If  the  change  be  a  wise  one  and  prove  beneficial, 
it  will  be  adopted  by  the  people  and  become,  in  time,  custom 
and  organic  laAv.  So  that  we  get  at  last  to  the  English  doc- 
trine, that  Parliament  is  omnipotent,  that  is  to  say,  it  cannot 
be  legally  restrained.  Any  change  in  the  Constitution  may 
be  made  by  act  of  Parliament,  which  may  be  repealed  by 
another  act,  if  the  change  is  not  agreeable  to  the  people.  The 
difference  between  Congress  and  Parliament  is,  that  the  latter 
has  legal  power  over  the  subject,  and  the  former,  by  the  law 
as  generally  understood,  none  at  all.  But  a  law  that  cannot 
be  enforced  is  a  nullity,  and  so  is  power  that  cannot  be  exerted. 
The  reserved  power  of  the  people  cannot  be  exercised,  and 
therefore  does  not  exist.  The  alleged  legal  restraint  on  the 
power  of  Congress  cannot  be  enforced,  and  therefore  there  is 
no  restraint  on  it.  The  whole  power  of  the  people,  within  the 
sphere  of  the  General  Government,  does  and  must,  in  the 
nature  of  things,  reside  in  Congress,  and  the  security  of  the 
people  consists  in  their  control  over  Congress  by  the  ballot- 
box. 

But  it  may  be  said  that  the  Government  itself  supplies  the 
check  to  restrain  its  poAvers.  This  can  only  mean  that  the 
different  departments  of  the  Government  are  a  check  on  each 
other.  The  exercise  of  poAver,  whether  by  an  individual  or 
nation,  is  naturally  divided  into  thinking,  judging,  and  doing. 
Action  implies  all  three :   thought  to  originate,  Avill  and  force 


42  THE    TRIAL    OF    THE     CONSTITUTION. 

to  execute  a  conceived  purpose,  judgment  to  compare  it  with 
rules  of  conduct.  These  functions  in  free  Governments  are 
assigned  to  different  persons,  as  if  united  in  one  they  woukl 
be  liable  to  abuse,  though  their  essential  character  is  the  same, 
Avhether  exercised  by  one  or  several.  When  it  is  said  that  a 
Government  itself  furnishes  restraints  on  its  own  action,  it  is 
not  meant  that  the  whole  power  of  Government  thus  restrains 
itself,  for  that  would  be  absurd.  The  only  possible  check  on 
Government  must  be  external,  not  internal,  for  it  is  else  con- 
trolled only  by  its  own  volition.  But  one  branch  or  depart- 
ment of  Government  may  have  power  to  limit  the  action  of  the 
others,  and  this  is  meant,  when  it  is  said,  that  our  Govern- 
ment furnishes  restraints  upon  itself  by  which  the  Constitution 
is  protected.  Should  it  be  violated  by  the  united  action  of 
all  branches  of  the  Government,  the  Constitution  has  no  pro- 
tection from  within. 

To  what  conclusion,  then,  does  this  reasoning  lead  us  ?  To 
that  at  which  we  arrive  by  a  short  road  in  all  inquiries  into 
the  nature  of  Government, — confidence  in  the  persons  to  whom 
power  is  intrusted,  and  confidence  in  the  people.  If  they  be 
wanting  in  duty  and  intelligence,  then  all  is  wanting  that  gives 
security  to  free  institutions,  and  the  Constitution  is  worthless 
as  the  notes  of  a  broken  bank. 

But  it  is  not  to  be  supposed,  we  may  be  told,  that  all  branches 
of  the  Government  will  conspire  to  violate  the  Constitution, 
neither  is  it  fair  to  assume  that  the  people  would  submit,  if 
they  did.  They  would  punish  and  frustrate  such  an  attempt 
by  the  ballot-box.  True  enough,  unless  the  thing  done  hap- 
pened to  suit  their  wishes,  their  passions,  their  mental  and 
moral  condition,  which  may  be  high  or  low.  If  low,  and  sinking 
lower,  they  will  soon  lose  all  power  over  the  Government  and 
will  neither  care  whether,  nor  know  when,  the  Constitution  is 
disregarded.  But  if  their  spirit  and  intelligence  be  high  and 
progressive,  and  be  represented  by  the  persons  who  administer 
the  Government,  it  is  a  supposable  case  that  defects  in  the 
Constitution,  revealed  by  experience,  should  be  corrected,  or 
changes  demanded  by  necessity  should  be  made,  by  the  com- 
bined  action  of  all  branches    of  the    Government,   with    the 


A    WllITT  EN     CONSTITUTION.  43 

assent  of  the  people,  when  prescribed  forms  cannot  be  ob- 
served, either  because,  by  reason  of  their  intricacy,  they  can- 
not be  applied  at  all  or  not  in  time  to  meet  a  dangerous  emer- 
gency. Thus  changes  have  been  made  in  the  English  Consti- 
tution, which,  because  it  is  custom,  is  far  more  certain,  definite, 
and  positive  than  ours.  Wliy  have  those  changes  been  so 
made  ?  Is  it  because  of  any  peculiarity  of  that  law,  or  is  it 
because  of  a  principle  inherent  in  all  free  and  representative 
governments  ?  If  the  latter,  then  we  may  hope  that  altera- 
tions of  our  Constitution  will  be  made  in  the  same  way,  not- 
withstanding its  fifth  article. 

The  English  Government  has  been  gradually  built  up  to  its 
present  proportions  by  Parliament,  chiefly  by  the  popular 
branch  of  it,  the  House  of  Commons.  The  germ  of  a  Parlia- 
ment or  representative  legislature,  existed  in  the  Saxon 
institutions  at  the  earliest  and  rudest  period,  because  the 
spirit  of  freedom  is  inherent  in  the  Saxon  race.  Neither  that 
spirit  nor  its  outshoot  was  destroyed  by  the  Norman  conquest. 
The  roots  of  both  lived  in  the  soil  through  the  winter  of  tyr- 
anny that  followed,  and  soon  acquired  strength  to  appear 
above  the  surface.  They  grew  with  the  growth  of  the  people 
in  power  and  civilization.  The  Saxon  element  proved  stronger 
than  the  Norman,  or  rather,  Norman  and  Saxon  were  of  kin- 
dred race,  lovers  of  liberty  as  well  as  of  power,  and  they 
assimilated  ;  the  Norman  creating  a  House  of  Lords,  or  coun- 
cil of  the  King,  and  the  Saxon  a  House  of  Commons,  or  coun- 
cil of  the  people.  By  the  touches  of  time,  izough  and  gentle, 
for  they  were  subjected  to  both,  by  the  blood  of  brave  men, 
and  the  thought  of  wise  men,  King,  Lords  and  Commons 
were  slowly  moulded  into  the  present  symmetrical  structure. 
Throughout  the  Avhole  process  the  House  of  Commons  was  the 
principal  agent  of  change.  Incessantly  it  gained  power,  be- 
cause the  people  were  ever  acquiring  Avealth  and  intelligence, 
which  are  the  sources  and  means  of  power.  At  length  it 
gained  all  the  power,  triumphed  over  mitre,  crown,  and  coro- 
net and  was  proclaimed  "  omnipotent,"  by  which  is  signified 
that  it  possesses  the  supreme  sovereign  power  of  the  state,  un- 
controlled   by  any   superior.     It  became   strong  because  the 


44  THE     TRIAL     OF     THE     CONSTITUTION. 

people  became  strong,  and  it  ■wielded  all  their  strength.  It 
was  not  fettered  by  any  vague,  undefined,  "  reserved  powers  " 
of  the  people,  or  imprisoned  by  the  bars  and  bolts  of  im- 
practicable forms.  The  people  trusted  it  with  their  whole 
power,  and  it  was  faithful  to  the  trust. 

It  was  a  slow  process,  however,  this  of  getting  to  be  om- 
nipotent, resisted  by  all  manner  of  obstructions, — sword  and 
sceptre,  feudal  battlements  and  royal  towers  of  strength. 
Nevertheless  the  people  triumphed.  They  triumphed  by 
means  of  their  representatives  who  were  not  delegates.  They 
triumphed  because  they  gave  to  these  their  whole  power,  and 
did  not  attempt  to  exercise  it  themselves,  reserving  only  the 
right  of  approving  or  disapproving  what  had  been  done  for 
them  in  good  faith,  after  it  had  been  tested  by  experience. 
They  knew  what  they  wanted,  but  did  not  know. how  to  get 
what  they  wanted,  and  they  intrusted  with  authority  men 
whose  learning  and  wisdom  were  adequate  to  the  task.  Not 
one  of  the  improvements  of  the  British  Constitution  could 
have  been  contrived  by  the  people,  or  proposed  by  a  majority 
of  two-thirds  of  them,  or  ratified,  after  popular  debate  and  the 
handling  of  tribunes,  by  a  majority  of  three- fourths.  Yet 
they  got  them  all,  sometimes  it  is  true  by  rough  work  and 
through  passages  of  difficulty  and  peril ;  yet  they  got  them. 
They  did  not  make  them.  They  were  made  for  them  by  their 
wisest  and  best  men.  The  people  did  not  ratify  the  perform- 
ances of  these  by  votes  and  conventions,  but  by  acceptance, 
by  enjoyment,  by  love  and  reverence ;  walls  and  buttresses 
stronger  to  resist  rash,  passionate,  mistaken  aiul  dishonest 
innovations,  than  any  reserved  powers  or  fifth  articles  that 
could  have  been  contrived  to  curb  the  free  yet  responsible 
action  of  Parliament. 

The  English  Constitution  is  not  without  internal  checks  to 
regulate  the  Avorking  of  its  machinery.  They  are  described 
by  elementary  wi-iters  as  contrived  to  prevent  the  encroach- 
ment of  one  branch  of  the  (jrovernment  on  the  right  and  au- 
thoi'ity  of  aiioiher,  or  of  one  class  or  oi'der  of  the  people  on 
the  liberty  and  intei'csts  of  another.  They  create  that  balance 
of  power  and  balance  of  interest  which  secures  the  steady  and 


A    WRITTEN    CONSTITUTION.  45 

harmonious  action  of  the  Avhole.  They  all  tend  to  secure  the 
supremacy  of  the  Legislature,  and  to  subject  it  to  the  control 
of  the  people. 

All  branches  of  the  Government  must  unite  to  make  a  law,  but 
none  of  them  can  long  and  persistently  resist  the  Legislature, 
which  represents  the  public  sentiment  of  the  day.  Parliament 
is  the  driving  wheel  of  the  engine,  but  popular  opinion  is  the 
steam  in  the  boiler.  The  King  can  veto  a  bill,  but  must  do 
so  by  his  Ministers.  He  can  dissolve  Parliament,  but  only  to 
have  another  elected  by  the  people,  charged  with  a  fresh  ex- 
pression of  their  will.  Lords  and  Comriions  must  unite  in  the 
enactment  of  a  law  ;  but  laAvs  for  taxing  the  people  must  origi- 
nate in  the  Commons.  Parliament  can  control  the  King  by 
its  control  over  the  supplies,  over  the  civil  list,  over  the  army 
and  navy,  over  his  own  income  and  over  his  responsible  ad- 
visers. The  Judges  hold  their  offices  during  good  behavior, 
which  secures  their  independence.  It  is  their  province  to  in- 
terpret the  law,  and  to  apply  it  to  the  cases  that  arise,  but 
they  have  no  power  to  declare  an  act  of  Parliament  invalid. 
The  authority  of  Parliament  is  therefore  transcendent,  though 
surrounded  by  restraints;  it  wields  the  absolute,  despotic 
power  that  must  exist  in  every  nation,  but  so  long  as  the  peo- 
ple love  liberty  and  reverence  traditions  and  ancient  rights,  it 
cannot  alter  the  Constitution  against  their  will. 

The  English  Constitution  was  not  made  by  any  man  or  set 
of  men,  appointed  at  a  particular  time,  for  the  purpose.  It 
grew  out  of  the  wants  of  every  period  of  its  history,  and  was 
slowly  built  up,  by  minute  changes,  to  satisfy  those  wants. 
It  took  its  shape  at  every  stage  of  its  progress,  by  virtue  of  a 
universal  law  of  nature,  that  the  internal  spirit  is  manifested 
by  external  form,  that  the  invisible  is  represented  by  the 
visible,  that  mind  rules  matter,  and  makes  of  it  an  instrument 
to  execute  its  will. 

When  the  Catholic  Church  and  a  feudal  aristocracy  absorbed 
the  education  and  wealth  of  England,  the  priesthood,  the 
barons  and  the  feudal  monarch  ruled  the  Government.  When 
commerce  and  the  arts  of  industry  diffused  wealth  and  edu- 
cation among  the   people,  the  House   of  Commons   acquired 


46  THE     TRIAL     OF     THE     CONSTITUTION. 

power.  The  influence  of  tliis  tliird  estate  increased.  It  com- 
prises the  commerce,  the  manufactures,  the  capital,  a  portion 
also  of  the  industry  of  England,  but  it  is  balanced  by  the  land, 
by  the  cultivated  intelligence  and  by  the  high  character  of  the 
nobility.  The  governing  classes  of  the  people,  perhaps  all 
among  them  who  are  fit  to  govern,  are  divided  into  these  two. 
Parliament  represents  them  both,  and  Parliament  is  supreme. 
It  could  not  be  otherwise.  Absolute  rule  is  eternally  the 
attribute  of  strength.  Given  a  free  people  and  a  representa- 
tive Government,  and  the  Legislature  must  be  supreme. 

So  it  has  happened  in  England,  and  so  it  will  happen  here, 
unless  our  institutions  be  subverted  by  the  dangerous  tendency 
of  a  democracy  towards  despotism, — that  is  to  say,  unless  the 
people  prove  incapable  of  representative  government.  The 
difference  between  us  and  England  is  that  we  have  no  class  of 
large  landowners,  therefore  no  nobility,  and  therefore  no 
House  of  Lords.  The  Senate,  indeed,  represents  a  peculiarity 
of  our  system, — the  independence  of  the  States.  But  the 
Senate  is  scarcely,  on  that  account,  less  under  the  control  of 
the  people  than  the  House.  Congress,  therefore,  is  practi- 
cally a  House  of  Commons,  without  the  Lords,  as  we  are  the 
English  people  Avithout  the  aristocracy.  The  power  of  Con- 
gress, therefore,  is  only  the  greater  on  that  account,  because 
it  is  not  so  likely  to  be  divided  against  itself. 

The  powers  of  Congress  are  indeed  defined,  and  therefore, 
it  is  said,  limited  by  the  Constitution.  But  how  can  that 
limitation  be  enforced  ?  What  portion  of  the  machiner}'  of 
Government  provides  a  check  on  Congress  that  does  not  exist 
in  the  English  sj^stem,  under  Avhich  Parliament  has  become 
supreme?  The  King  has  an  absolute  veto,  but  the  Pi-esident 
a  qualified  one,  which  may  be  and  has  fre(|uently  been  over- 
come by  a  vote  of  two-thirds  of  Congress. 

Suppose  Congress,  either  with  or  against  the  consent  of  the 
President,  should  exceed  its  constitutional  powers,  where  is 
the  check?  Every  one  will  at  once  answer,  in  the  Judiciary. 
In  America,  the  Constitution  is  the  supreme  law,  or  to  state 
it  as  emphatically,  the  law  ;  in- England,  an  act  of  Parliament 


A    WRITTEN    CONSTITUTION.  47 

is  the  law  :  in  both,  the  Courts  are  bound  to  administer  the 
law. 


In  all  discussions  concerning  an  unwritten  Constitution  like 
that  of  England,  one  question  only  can  arise.  Does  it  suit 
the  present  condition  of  the  people  ?  There  can  rarely  be 
any  doubt  as  to  what  the  law  is,  for  customs  are  by  their 
nature  certain  and  known.  The  mere  existence  of  a  customary 
law,  moreover,  is  proof  that  it  is  founded  on  truth,  for  such 
only  does  time  respect.  But  a  written  Constitution  not  yet 
fully  interpreted  or  sanctioned  by  experience,  and  therefore 
still  on  trial,  presents  two  other  questions :  what  is  the  law  ? 
and  does  it  conform  to  the  natural  law  inherent  in  every  Go- 
vernment, and  which  must  and  will  be  obeyed  ? 

Let  us  first  consider  the  second  of  these  questions.  What 
is  the  natural  organic  law  to  which  every  Constitution  must 
conform  or  perish  ?  Municipal  law  is  "  a  rule  of  civil  conduct 
prescribed  by  the  supreme  power  in  a  state."*  But  how  is 
the  power  to  be  applied  ?  Through  agents  or  officers,  whose 
functions  are  defined  by  custom,  which  implies  the  consent  of 
the  people  or  "  state,"  or  by  a  plan  made  for  the  purpose  and 
formally  ratified  by  the  people.  In  either  case  it  is  the 
supreme  power  of  the  people,  which  is  employed  to  make  laws, 
and  which  when  distributed  among  several,  or  confided  to  one 
person,  constitutes  a  Government.  A  mere  unorganized  mul- 
titude, however  large,  though  it  has  power,  has  no  govern- 
ment. The  power  is  latent ;  potential,  but  cannot  act. 
When  the  power  of  the  multitude,  with  or  Avithout  restriction, 
is  granted  to  or  obtained  by  one  or  several,  then  Government 
begins,  and  its  plan  or  form  determines  how  the  power  shall 
be  limited  and  how  used. 

Government,  therefore,  may  be  described  as  the  means  or 
as  a  machine  by  which  ijower  is  used  for  making  laws. 

Now,  Avhat  is  power  ?  Without  entering  into  any  subtle 
analysis,  we  may  say  that  it  is  the  faculty  of  doing  anything. 

*  1  Blackstone's  Comm.,  44. 


48  THE     TRIAL     OF     THE     CONSTITUTION. 

It  is  an  invisible  force  existing  in  nature,  and  revealed  by 
visible  effects.  It  is  therefore  controlled  by  natural  laws, 
•\vliicli  cannot  be  resisted  by  any  liinnan  contrivances.  The 
power  of  man  is  exerted  by  will,  and  will  must  be  preceded  by 
thought.  Action,  therefore,  is  the  result  of  thought  and  will. 
But  action  is  physical,  and  there  can  be  no  action  Avithout 
physical  ability.  The  power  of  the  people,  therefore,  consists 
of  their  opinions  and  desires,  prompting  them  to  will,  with  the 
material  force  to  execute  their  will.  This,  too,  is  the  power 
of  Government,  which  is  nothing  more  than  the  power  of  the 
people,  and  is  derived  from  the  people.  When  the  people 
grant,  Avillingly  or  unwillingly,  all  their  power  of  thought,  of 
will,  and  of  physical  force,  to  a  Government,  they  have  none 
left,  and  that  Government  is  absolute.  When  they  grant  a 
portion  of  their  power,  according  to  the  amount  retained,  and 
■practically  exerted,  t\\Qy  are  free.  But  as  they  do  not  possess 
what  they  have  granted,  or  what  has  been  taken  from  them, 
so  they  do  not  possess  what  they  cannot  use,  although  it  may 
have  been  theoretically  retained  in  their  plan  of  Government. 
And  this  result  is  produced  either  Avhen  the  power  retained 
cannot  be  used,  through  some  defect  in  the  machinery  of  Go- 
vernment, or  because,  from  its  nature,  the  people  cannot  use 
it.     In  both  these  cases  it  has  no  real  existence. 

Are  not  these  the  laws  or  fundamental  truths  that  control 
political  power,  or  those  of  them  that  apply  to  the  present 
topic  ?  Let  us  consider  them  in  relation  to  alterations  of  the 
Constitution,  and  the  authority  of  the  Judiciary  to  prevent 
such  alterations. 

Power  which  the  people  cannot  use  they  do  not  possess, 
whether  the  Constitution  reserves  it  to  them  or  not.  AVhen  a 
Government  is  created,  whatever  its  form,  all  the  power  of  the 
people  is  divided  between  them  and  the  Government.  There- 
fore, Avhatever  portion  of  power  the  people  do  not  keep  for 
themselves,  the  Government  must  acquire.  Now,  power  is  the 
faculty  of  doing  something ;  and  whatever  the  people  cannot 
do  they  have  not  the  power  to  do,  and  no  constitution  can  give 
it  to  them.  It  is  because  of  this  inability  of  the  people  to  do 
certain  things,  which  nevertheless  must  of  necessity  be  done. 


A    WRITTEN    CONSTITUTION.  49 

that  Governments  are  established  at  all.  The  people  cannot 
make  laws.  The  power  of  making  laws,  therefore,  belongs  to 
Government,  since  there  must  be  laws.  The  people  cannot 
execute  the  laws,  therefore  they  must  be  executed  by  Govei'n- 
ment.  The  people  cannot  interpret  the  laws,  and  apply  them 
to  cases  as  they  arise,  according  to  the  elaborate  legal  science 
which  grows  up  in  a  civilized  community,  therefore  this  func- 
tion must  be  performed  by  Government.  All  these  things, 
and  many  others,  the  people  cannot  do.  But  they  are  things 
which  must  be  done,  and  they  can  be  done  only  by  Govern- 
ment. 

Can  the  people  alter  the  Constitution  ?  Not,  as  already 
shown,  by  the  means  provided  in  the  Fifth  Article,  or  not  in  all 
cases, — not  when  the  alteration  may  be  most  important,  or 
may  be  most  needed.  Indeed,  it  may  well  be  doubted  whether 
the  people  are  competent  for  such  work  at  all,  any  more  than 
they  are  for  making,  executing,  or  administering  laws.  Yet 
a  change  may  be  absolutely  necessary  to  save  the  nation  from 
destruction.  If  the  people  cannot  make  the  change,  they  have 
iiot  the  power  to  make  it.  Who  has  ?  The  Government  must 
have  it,  or  the  Constitution  can  be  altered  only  by  a  revolution. 

What  then  becomes  of  the  power  of  the  people  to  protect 
their  rights  and  liberties  ?  It  consists  of  such  power  as  they 
are  able  to  exercise.  They  cannot,  in  tlie  nature  of  things, 
possess  any  other.  In  Representative  Governments  they  can 
and  do  exercise  control  over  the  persons  intrusted  with  power, 
and  in  this  consists  their  security.  In  all  civilized  countries 
they  influence  Government  by  means  of  enlightened  opinion. 
If  these  defences  fail,  force  only  remains,  physical  resistance 
or  insurrection,  and  even  this  they  lose  under  a  military  des- 
potism. 

If  the  people  can  neither  make  laws  nor  execute  them,  nor 
apply  them  judicially,  nor  alter  the  Constitution — and  there- 
fore all  these  things  must  be  done  for  them  by  the  Govern- 
ment— it  is  not  easy  to  see  wherein  their  reserved  power 
consists.  Is  it  not  evident  that  they  have  really  intrusted 
the  Government  with  all  their  power,  and  that  the  Constitu- 

4 


50  THE    TRIAL    OF    THE    COXSTITUTIOX. 

tion,  like  tlie  Great  Charter  and  other  organic  Acts  of  the 
British  Government,  is  nothing  more  than  a  Bill  of  Rights ; 
dechiratory  of  the  Avishes  and  feelings  of  the  people,  and 
enumerating  the  rights,  privileges  and  immunities  they  have 
inherited  and  desire  to  enjoy  and  transmit  to  their  posterity? 
It  is  an  express  and  formal  statement  of  these,  and  a  solemn 
notice  to  the  Government,  that  all  of  them  are  to  be  held 
sacred  and  preserved  forever.  But  what  power  have  the 
people  to  keep  this  Constitution  or  Great  Charter  of  Liberty, 
inviolate  ?  The  same  power  possessed  by  the  English  people, 
the  privilege  of  voting  at  periodical  elections,  and  of  dis- 
missing those  who  shall  dare  to  infringe  or  destroy  it  against 
their  will.  The  Constitution  has  no  other  protection,  should 
all  branches  of  the  Government, — Legislative,  Executive^ 
and  Judiciary, — combine  to  alter  it,  and  Congress,  but  for 
the  alleged  check  of  the  Judiciary,  would,  like  Parliament,  be 
omnipotent. 

Can  there  be  such  a  check,  however  expressly  it  may  be 
provided  in  the  Constitution  ?  Is  it  possible,  from  the  nature 
of  the  forces  to  be  applied,  so  to  construct  the  machinery  of 
Government  as  to  make  the  Judiciary  the  controlling  force  ? 

PoAver  is  the  faculty  of  doing  a  thing  or  causing  it  to  be 
done.  What  a  man  cannot  do  himself,  he  may  do  by  ma- 
chinery, or  may  have  done  for  him  by  other  men,  if  he  can 
find  any  competent  to  the  task  and  can  control  them.  He 
does  this  by  delegating  his  poAver  over  the  object  to  others. 
I  cannot  Avalk  or  run  forty  miles  an  hour,  but  I  can  travel 
at  that  rate  in  a  raihvay  train.  The  moment  I  enter  the  car 
I  give  up  my  poAver  over  the  object  sought.  The  train  moves, 
I  am  moved.  I  Avish  my  ship  to  make  a  voyage  to  China. 
I  cannot  take  her  there  myself.  Nevertheless,  I  have  the 
power  to  accomplish  my  purpose  if  I  can  employ  some  one 
Avho  has  the  skill  to  take  her  to  China.  As  soon  as  he  is  in 
command  of  her,  I  lose  the  conmiand.  But  I  have  no  such 
poAver,  if  I  employ  one  Avho  has  not  the  skill ;  neither  can  I 
travel  forty  miles  an  hour  if  I  use  a  trotting  Avagon  instead  of 
a  steam  car.  I  have  a  perfect  right  to  accomplish  either 
object  if  I  can,  and  my  poAver  exists  in  the  choice  of  compe- 


A    WRITTEN    CONSTITUTION.  51 

tent  agents.  I  have  no  other  power  over  that  object  what- 
ever. 

Let  us  assume  that  the  men  who  made  the  Constitution  in- 
tended to  keep  the  Government,  under  all  circumstances,  within 
its  prescribed  limits;  that  they  intended  that  the  Constitu- 
tion should  not  be  essentially  altered,  except  in  the  manner 
prescribed  by  itself.  It  is  asserted  that  the  whole  machine 
was  meant  to  be  self-regulating,  and  that  the  part  of  it 
designed  to  control  the  rest,  and  prevent  eccentric  action,  is 
the  Supreme  Court.  In  other  words,  Legislative  and  Execu- 
tive power  are  controlled  by  Judicial  power,  or  are  else  un- 
controlled by  any  internal  force.  Should  Judicial  power 
prove  too  weak  for  this  purpose,  the  others,  or  whichever  of 
them  is  the  stronger,  will  reign  supreme.  It  is  a  vain  thing 
to  delegate  power  that  cannot  be  exerted.  Such  power  has  no 
existence. 

Now,  which  is  the  strongest  of  these  three  branches  of  Go- 
vernment, the  recipients  and  trustees  of  the  power  of  the 
state  ?  Is  it  the  Legislature  which  originates,  thinks,  plans, 
and  wills  ;  which  represents  the  people ;  which  is  ever  in  con- 
tact with  them,  receiving  fresh  impulses  from  their  opinions 
and  feelings  and  renewed  trust  at  short  intervals ;  which 
makes  the  laAvs  and  controls  the  purse  and  the  sword  ?  Or  is 
it  the  Executive,  which  neither  originates,  nor  plans,  nor  wills, 
nor  makes  laAvs,  but  whose  province  it  is  to  apply  to  facts  the 
thouo;ht  and  will  of  the  Lenjislature,  to  enforce  its  laws,  which 
is  dependent  on  it  for  the  means  of  doing  so,  and  though 
elected  by  the  people,  receives  not  from  them  a  perpetual, 
renovating  stream  of  confidence ;  may,  indeed,  find  that  in- 
vigorating current  wholly  withdrawn  ?  Or  is  the  Judiciary 
stronger  than  either  of  these,  or  both  of  them  combined  ? 

One  would  think  not,  from  even  a  superficial  glance  at  its 
nature.  It  originates  nothing ;  it  plans  nothing ;  it  has  no 
will  whatever.  The  thought,  the  plans,  the  Avill  of  others,  are 
its  law.  It  has  no  power  of  spontaneous  action.  Its  faculties 
are  dormant  until  called  forth  by  a  "case."  However  fla- 
grantly the  Constitution  may  be  violated,  the  Judiciary  cannot 
interfere  by  Avord  or  deed,  but  must  sit  a  silent,  powerless 


52  THE     TRIAL     OF    THE     CONSTITUTION. 

spectator,  unless  life  and  motion  be  imparted  to  it  hj  the 
touch  of  an  attorney.  Should  the  breach  of  the  law  be  one 
that  cannot  give  rise  to  a  "case," — and  there  may  be  many 
such  of  the  gravest  character, — or  should  it  not  in  fact  give  rise 
to  one, — which  may  easily  happen,  for  it  may  do  no  injury  or 
slight  injury  or  it  may  do  good  or  suitors  may,  in  troubled 
times,  be  deterred  by  force  or  terror, — the  Supreme  Court  is 
utterly  impotent.  It  is  impotent,  too,  should  the  Legislature 
think  fit  to  overrule  its  judgment.  Its  decree,  indeed,  may  be 
enforced  upon  the  parties  to  the  suit  immediately  before  it ; 
but  suppose  the  Legislature  should  disregard  its  decision,  and 
should  be  sustained  by  the  people,  what  could  the  Court  do  ? 
It  has  no  purse,  no  sword,  nothing  but  a  legal  opinion  with 
which  to  resist  legislative  power,  armed  with  these  and  with 
popular  opinion  besides.  Such  are  the  opposing  forces  which  the 
Court  would  be  likely  to  encounter,  for  no  clear  and  intentional 
departure  from  the  Constitution  will  probably  be  made,  either 
by  the  President  or  by  Congress,  unless  the  measure  really  is, 
or  is  supposed  to  be  agreeable  to  the  wishes  of  a  ruling  party 
in  the  country. 

The  Judiciary  is  not  elected  by  the  people,  and  does  not 
therefore  represent  their  wishes  or  opinions,  except  their  gene- 
ral desire  that  justice  be  fairly  administered  according  to  law. 
For  this  reason  the  Judges  are  exempt  from  pojDular  control. 
They  pass  upon  the  rights  of  individuals,  and  therefore  should 
be  free  from  all  external  influence.  They  do  not  make  laws, 
but  interpret  and  administer  them  by  the  rules  of  a  difficult 
science.  This  science  the  people  do  not  understand,  neither 
are  they  competent  judges  of  the  qualities  necessary  to  profi- 
ciency in  it,  and  as  most  of  its  principles  are  immutable,  those 
wlio  are  to  apply  them  ought  to  be  governed  only  by  those 
principles.  An  independent  Judiciary  is  therefore  all-im- 
portant. But  in  a  representative  government  an  independent 
Judiciary  is  a  Aveak  pow^r,  because  strength  comes  from  tlie 
people. 

Moreover,  the  guide  of  the  Judiciary  is  precedent.  Tlie 
ruling  spirit  of  the  people  is  progress.  It  is  the  province  of 
the  Judiciary  to  say  what  the  law  is  at  a  given  time.     It  is 


A    WRITTEN    CONSTITUTION.  53 

the  privilege  of  the  people  to  say  what  it  shall  be.  But  if  any 
part  of  the  law  be  legally  immutable,  the  Judiciary  cannot 
follow  the  lead  of  the  people.  If  the*  Constitution  be  immu- 
table, what  was  law  in  1787,  must  be  law  as  long  as  the  Con- 
stitution lasts.  To  maintain  it,  therefore,  the  Judiciary  must 
be  stronger  than  the  people,  stronger  than  the  representatives 
of  the  people.  In  a  popular  government  this  is  impossible.  It 
contradicts  its  elementary  principles.  The  Judiciary  is  armed 
with  no  means  of  resisting  the  people  or  their  organ,  the 
Legislature,  and,  its  alleged  power  for  that  purpose  does  not 
exist.  The  Judiciary  has  a  wide  and  fruitful  field  for  the 
exercise  of  high  talents  and  noble  virtues.  Our  Supreme 
Court  has  cultivated  that  field  with  assiduous  care  and  dis- 
tinguished ability,  and  filled  it  with  choice  and  most  valuable 
trees  of  thought  and  knowledge,  bearing  golden  fruit,  but  in 
its  soil  the  tree  of  political  power  cannot  grow. 

No  convention  can  change  the  respective  and  very  diiferent 
attributes  of  Legislative,  Executive  and  Judicial  power.  The 
power  of  the  people,  delegated  to  Government,  is  essentially  a 
unit  and  differs  only  in  its  mode  of  operation.  It  may  be 
united  in  one  ofiice  or  distributed  among  several,  but  in  each 
will  retain  its  nature  and  work  after  its  kind,  and  will  be 
power  thinking  and  willing,  power  acting  or  converting  Avill 
into  fact,  and  power  judging  or  deciding  upon  ",cases"  and 
the  conflicting  interests  of  parties.  The  object  sought  in  the 
machinery  of  a  free  Government,  is  not  to  alter  the  natural 
qualities  of  these  functions,  for  that  is  impossible,  but  to  avoid 
the  danger  of  concentrating  all  power  into  one  hand  by  fur- 
nishing suitable  instruments  for  each  function,  to  keep  each  in 
its  appropriate  sphere.  A  Constitution  must  therefore  pro- 
vide that  the  Legislature  shall  neither  execute  its  own  laws, 
nor  decide  upon  the  rights  of  parties  ;  that  the  Executive  shall 
neither  make  laws  nor  decide  upon  the  rights  of  parties ;  that 
the  Judiciary  shall  neither  make  laws  nor  wield  the  physical 
force  of  the  nation  to  execute  them,  but  that  each  shall  have 
only  so  much  of  the  pov/er  of  the  others  as  may  be  necessary 
to  protect  itself  in  its  own  separate  province.  This  object  is 
attained  in  the  English  Constitution,  it  is  attained  also  in  ours  ; 


54  THE    TRIAL     OF    THE     CONSTITUTION. 

but  neither  of  them  does,  nor  can  any,  make  these  several 
branches  of  power  equal  to  each  other,  or  prevent  that  which 
is  stronger  than  the  others  by  nature  from  being  supreme. 

The  Constitution  cannot  make  the  law-expounding  power 
equal  or  superior  to  the  law-making  power.  To  make  laws 
implies  superiority,  implies  obedience,  for  laws  not  obeyed  are 
no  laws.  Sovereignty  and  Legislation  are  therefore,  as  Black- 
stone  says,  convertible  terms,  one  cannot  subsist  without  the 
other.*  As  there  cannot  be  two  powers  in  the  same  Govern- 
ment each  of  which  is  sovereign,  it  follows  that  in  our  system 
Congress  is  omnipotent,  in  the  sense  that  in  the  English 
system  Parliament  is  omnipotent.  It  may  be  said,  this 
places  the  Constitution  at  the  mercy  of  Congress,  and  thus  at 
the  mercy  of  the  blind,  passionate,  capricious  impulses  of 
popular  opinion.  But  the  question  is,  not  what  is  desirable, 
but  what  is  and  must  be.  In  England,  as  the  people  acquired 
power  the  Legislature  became  supreme ;  here,  w^here  the  peo- 
ple have  power,  the  Legislature  is  supreme.  We  have  not  the 
influences  which  give  permanence,  stability  and  security  to  the 
English  Government,  because  we  have  not  in  our  population 
the  elements  whence  these  influences  emanate.  We  have  not 
an  established  church,  a  landed  aristocracy,  an  ancient  throne, 
all  invested  with  wealth,  splendor,  legal  power  and  rank,  and 
the  prestige  of  old  associations  and  national  traditions.  The 
Convention  had  no  materials  out  of  which  to  fashion  these  but- 
tresses and  bulwarks  to  the  edifice  they  Avere  building,  for 
neither  a  royal  family,  a  nobility,  nor  a  Church  existed  in  the 
country. 

They  had  only  a  very  intelligent  people,  composed  of  the 
best  race,  without  a  privileged  class,  enjoying  great  equality 
of  condition  and  placed  amid  circumstances  calculated  to  de- 
velop their  energies  and  virtues  to  the  greatest  extent.  We 
have  the  same  people,  Avith  the  advantage  of  seventy  years' 
experience,  during  which  they  have  prospered  under  this  Con- 
stitution, in  peace  and  happiness,  up  to  the  present  time.  It 
has  proved  adequate  to  all  their  wants,  and  they  have  not 

*  1  Blackstone's  Comm.,  47. 


A     W  KITTEN    CONSTITUTION.  55 

■wished  to  change  it ;  on  the  contrary,  their  love  and  respect 
for  it  have  constantly  increased  with  their  numbers,  their 
riches,  their  intelligence  and  their  power.  The  Convention 
had  no  choice  but  to  make  a  popular  government.  When 
tlicy  did  so,  they  accepted  all  its  consequences.  We  have  no 
choice  but  to  live  under  one.  The  people  rule.  The  country 
is  theirs  and  they  govern  it.  The  Constitution  is  theirs,  and 
they  can  and  will  mould  and  modify  it  to  suit  their  wishes. 
We  come,  therefore,  at  once  to  the  foundation  of  all  republi- 
can government, — the  intelligence  of  the  people.  If  that  fail, 
the  Constitution  will  fail.  If  the  people  prove  unfit  for  free- 
dom, they  cannot  maintain  free  government,  for  its  essence 
consists  in  the  exercise  of  power  by  the  people. 

We  are  committed  to  the  experiment.  The  Constitution 
has  failed  to  protect  us  from  the  calamity  of  a  bloody  and  de- 
structive civil  war ;  but  it  does  not  follow  that  free  govern- 
ment is  to  fail.  That  will  depend  on  the  people,  and  their 
intelligence,  prudence  and  patriotism  are  likely  soon  to  be 
tested.  The  great  principles  of  the  Constitution  are  true. 
The  machinery  by  which  they  were  meant  to  be  carried  out  is 
for  the  most  part  Avell  contrived  for  the  purpose.  But  its 
defects  must  be  'Corrected.  What  they  are  and  what  is  the 
remedy  are  the  problems  presented  by  the  war. 

We  must  expect  that  changes  will  be  made,  perhaps  great 
changes,  and  they  ought  to  be  made  by  Congress,  for  they 
cannot  be  made  by  the  Fifth  Article,  nor  can  the  action  of 
Congress  be  resisted  by  the  Courts.  Why  should  they  not  be 
made  by  Congress,  if  demanded  by  necessity,  as  they  would 
be  by  an  English  Parliament  ?  Should  they  be  approved  and 
ratified  by  the  people,  what  is  the  difference,  whether  their 
consent  be  expressed  by  a  Legislature  or  by  a  Convention 
which  they  have  elected,  or  before  or  after  the  alteration  is 
made  ?  It  would  still  be  the  wishes  of  the  same  people  carried 
into  effect.  If  the  people  should  be  dissatisfied,  they  can  say 
so  through  another  Congress.  If  they  continue  to  be  satisfied 
after  the  alteration  is  tried,  it  would  be  thus  established  as  a 
precedent- to  be  engrafted  on  the  Constitution,  as  is  tlie  case 
in  Enixland. 


56  THE    TRIAL     OF    THE    CONSTITUTION. 

Such  Avould  be  the  natural  result,  for  the  tendency  of  all 
law  is  to  resolve  itself  into  precedent  or  custom.  But  the 
peaceful  settlement  of  such  questions  here  is  obstructed  by 
the  want  of  undisputed  legal  right  in  the  Legislature  to  dis- 
pose of  them.  There  is  thus  a  conflict  between  its  inherent, 
necessary  power,  and  its  constitutional  authority,  which  gives 
rise  to  many  embarrassing  and  dangerous  doctrines.  When- 
ever the  limits  of  authority  are  found  to  be  too  narrow,  they 
will  be  broken.  But  will  they  stay  broken  ?  And  how  can 
such  questions  ever  be  settled  ?  The  Constitution  is  the  per- 
manent, supreme  law.  But  is  the  construction  put  on  the  Con- 
stitution by  the  practice  of  the  Government  and  by  judicial 
decisions,  the  supreme  law  ?  Not  so  according  to  some.  The 
Constitution  is  to  be  interpreted  only  by  itself,  and  a  thousand 
years  hence  it  will  be  still  the  Constitution,  unaltered  and  su- 
preme. The  Constitution  being  new,  many  parts  of  it  are  of 
necessity  doubtful,  and,  like  a  statute,  it  can  only  be  settled  by 
interpretation,  as,  from  time  to  time,  it  is  applied  to  facts. 
Therefore,  a  constitutional  question  is  almost  sure  to  arise,  and 
has  frequently  arisen,  on  important  measures  of  Government, 
which  meet  opposition,  and  all  such  are  opposed.  The  argument 
is  very  convenient.  It  is  easily  made,  it  is  not  easily  answered 
and  it  can  never  be  silenced.  The  right  of  Congress  to  establish 
a  Bank,  to  impose  a  Tariif,  to  make  public  improvements,  to 
legislate  for  the  Territories,  and  other  questions,  have  been 
doubted,  discussed,  and  settled,  so  far  as  the  Government  and 
Court  could  settle  them.  They  were  all  opposed  on  constitu- 
tional grounds,  but  whenever  debated  they  are  still  opposed 
on  the  same  grounds.  A  recent  example  of  this  was  the  case 
of  Dred  Scott,  when  the  practice  of  the  Government  and  the 
decisions  of  the  Courts,  ever  since  the  Constitution  was  made, 
Avere  set  aside,  on  the  ground  that  they  had  violated  the  Con- 
stitution. These  questions  are  ghosts  that  cannot  be  laid,  so 
long  as  the  Constitution  is  regarded  as  a  finality  in  itself  and 
by  itself,  without  regard  to  the  custom  which  has  grown  up 
under  it. 

Another  mischievous  effect  of  the  denial  of  power  in  Con- 
gress to  settle  constitutional  questions  is,   that  every  such 


A    WRITTEN     CONSTITUTION.  f)! 

settlement  is  regarded  as  a  violation  of  right  by  the  party  that 
opposes  it, — a  wrong,  therefore,  which  justifies  resistance.  The 
Constitution  has  been  broken  by  the  Tariff,  said  the  Southern 
people  in  1833,  and  we  liave  a  right  to  oppose  it  by  force;  and 
they  carried  their  opposition  to  the  verge  of  rebellion.  The 
Constitution  has  been  broken  by  the  exclusion  of  slavei'y  from 
Kansas,  said  the  same  people  in  1861 ;  and  they  did  rebel. 
In  England  this  pretext  for  treason  cannot  be  used,  for  there 
are  no  limits  to  the  constitutional  poAver  of  Parliament. 

But  a  breach  of  the  Constitution  not  only  justifies  resistance 
because  it  is  a  wrong  which  admits  of  no  other  redress,  but,  as 
some  contend,  it  dissolves  the  Union,  and  releases  the  citizen 
from  the  obligations  of  allegiance.  There  is,  indeed,  properly 
speaking,  no  such  thing  as  allegiance  in  this  free  country ;  no 
such  thing  as  "subjects,"  of  course, — not  even  citizens.  The 
Constitution  is  an  express,  formal,  written  contract  between 
the  people  and  the  Government,  to  Avhich  peo])le  and  States 
are  parties.  Now,  in  law,  if  a  contract  be  violated  by  one  of 
the  parties,  the  other  is  released.  If  there  be  no  common  ar- 
biter, each  party  must  judge  for  itself. of  the  fact  of  violation. 
But  in  this  case  there  is  no  common  arbiter,  for  the  construc- 
tions put  upon  the  Constitution  are  not  a  part  of  it.  When, 
therefore,  the  Northern  States  "seceded  from  the  Constitu- 
tion" by  refusing*  to  execute  the  Fugitive  Slave  law,  and  the 
Government  refuses  or  fails  to  enforce  obedience,  the  contract 
is  broken,  because  the  Constitution  is  broken  ;  the  Union  is, 
ipso  facto,  severed,  and  the  States  are  restored  to  their  original 
condition  of  independent  sovereignties. 

These  disorganizino;  notions  have  had  immense  influence  in 
causing  our  present  difiicultics.  They  form  the  creed  of  sec- 
tions and  parties,  and  indeed  they  spring  logically  from  the 
principle  that  a  written  Constitution  is  and  must  remain  a 
finality  forever,  to  be  interpreted  only  by  itself,  and  to  be 
altered  only  in  the  manner  appointed  by  itself,  by  the  "  re- 
served powers"  of  the  people, — not  by  the  power  they  liave 
delegated  to  the  Government.  The  fatal  influence  of  the  de- 
ductions thus  made  has  been  greatly  enhanced  by  another  doc- 
trine, drawn  partly,  indeed,  from  the  same  prolific  source  of 


58  THE     TRIAL     OF     THE     CONSTITUTION, 

confusion,  but  so  unpliilosophical,  and  so  subversive  of  order 
and  the  harmonious  action  of  Government,  that  but  for  the  re- 
spectable names  connected  with  it,  it  woukl  be  scarce  Avortliy 
a  passing  notice. 

Mr.  Jeiferson  declared  that  "  each  department  is  truly  inde- 
pendent of  the  others,  and  has  an  equal  right  to  decide  for 
itself  what  is  the  meaning  of  the  Constitution,  in  the  laAvs 
submitted  to  its  action,"*  and  his  own  conduct  as  President 
Avas  guided  by  that  opinion.  General  Jackson  had  the  same 
ideas.  They  have  not  indeed  been  sustained  by  the  best 
writers  on  our  Government.  Nevertheless,  the  doctrines  are 
still  alive  and  influential,  for  we  find  them  asserted  in  an 
opinion  of  the  present  Attorney-General,  Mr.  Edward  Bates, 
on  the  suspension  of  the  writ  of  Habeas  Corpus,  given  in  obedi- 
ence to  a  requisition  made  by  the  President,  July  5,  1861. 

He  says,  speaking  of  the  different  departments  of  the 
Government,  "  Tliey  are  co-ordinate  and  coequal,  thart  is, 
neither  being  sovereign,  each  is  independent  in  its  sphere,  and 
not  subordinate  to  the  others,  either  of  them  or  both  together. 
.  .  .  Now,  if  we  allow  one  of  the  three  to  determine  the 
extent  of  its  own  powers,  and  also  the  extent  of  the  powers  of 
the  other  two,  that  one  can  control  the  whole  Government. 
.  .  .  Our  fathers,  having  divided  the  Government  into  co- 
ordinate departments,  did  not  even  try  (and  if  they  had  tried 
would  probably  have  failed),  to  create  an  arbiter  among  them 
to  adjust  their  conflicts,  and  to  keep  them  within  their  respec- 
tive bounds.  They  have  left  by  design,  I  suppose,  each  inde- 
pendent and  free,  to  act  out  its  own  granted  powers,  without 
any  legal  superior  possessing  the  power  to  revise  and  reverse 
its  action.  ...  In  this  view  of  the  subject,  it  is  quite 
possible  for  the  same  identical  question  (not  case)  to  come  up 
legitimately  before  each  of  the  three  departments,  and  be 
determined  in  three  different  ivays,  and  each  decision  stand 
irrevocable,  binding  upon  the  parties  to  each  case ;  and  that 
for  the   simple  reason  tjiat  the  departments   are  co-ordinate, 

'■'  Story  on  the  Constitution,  §  874. 


A    WRITTEN     CONSTITUTION.  59 

and  there  is  no  orJained  legal  superior  with  power  to  revise 
and  reverse  their  decisions." 

One  would  think  that  this  was  the  reductio  ad  ahsurdum, 
but  he  goes  on.  "  To  say  that  the  departments  of  our 
Government  arc  co-ordinate,  is  to  say  that  the  judgment  of 
one  of  them  is  not  binding  on  the  other  two,  as  to  the  argu- 
ments and  principles  involved  in  that  judgment.  It  binds  only 
the  parties  to  the  case  decided.  But  if,  admitting  that  the 
departments  are  co-ordinate,  it  be  still  contended  that  the 
principles  adopted  by  one  department  are  binding  upon 
another,  that  obligation  must  be  reciprocal.  That  is,  if  the 
President  be  bound  by  the  principles  laid  down  by  the  Judici- 
ary, so  also  is  the  Judiciary  bound  by  the  principles  laid  down 
by  the  President ;  and  then  we  shall  have  a  theory  of  constitu- 
tional government  flatly  contradicting  itself.  That  cannot  be." 
1^0  indeed,  neither  can  we  have  a  theory  flatly  contradicting 
nature,  truth,  and  reason,  like  that  announced  by  the  Honorable 
Attorney-General,  and  producing  such  inextricable  confusion, 
that  the  wonder  is  that  whilst  propounding  it,  he  did  not  see 
that  he  was  confuting  himself,  and  that  it  was  impossible  to 
impute  to  thb  founders  of  our  Government  the  design  of  causing 
such  outrageous  results.  Co-ordinate,  coequal  powers.  Can 
such  things  exist  in  a  Government  ?  and  if  they  could,  would 
any  wise  Convention  think  of  introducing  them,  unless  for  the 
express  purpose  that  they  should  Avraugle  and  fight,  as  Mr. 
Bates  says  they  would  ;  for  he  says  it  is  "  quite  possible  "  that 
the  same  question  would  be  determined  in  three  different  ways 
by  the  departments.  Of  course,  as  the  action  of  each  is 
naturally  independent,  the  same  question  might  be  determined 
differently  at  different  times.  Indeed,  as  the  Constitution  is  a 
complete  whole,  and  constructions  put  on  it  are  no  part  of 
it,  every  one  may  construe  it  as  he  pleases.  Therefore,  there 
is  no  Constitution.  And  as  the  departments  of  Government 
are  co-ordinate  and  coequal,  and  each  may  pull  different  ways, 
and  each  disregard  the  action  of  the  other,  may  we  not  say 
also,  we  have  no  Government  ?  Three  different  powers  of 
Government,  each  supreme ;  three  different  forces  of  precisely 
equal  strength.     If  such  could  be  put  into  a  material  machine, 


60  THE    TRIAL    OF    THE    CONSTITUTION. 

they  would  neutralize  each  other,  and  it  would  come  to  a  dead 
lock. 

The  various  doctrines  above  stated  are  not  reasonable,  they 
are  not  supported  by  the  best  authority,  they  are  inconsistent 
even  with  the  controlling  power  of  the  Supreme  Court,  and 
they  have  all  grown  out  of  the  principle  that  our  Government 
is  one  of  limited  powers,  Avhicli  cannot  be  exceeded  by  any 
branch  of  it,  unless  there  be  a  change  in  the  Constitution, 
made  by  the  "  reserved  powers  "  of  the  people,  in  the  way 
prescribed  in  the  Fifth  Article.  They  are  the  pestilent  brood 
of  the  false  principle  that  power  is  divisible  and  can  be,  at 
the  same  time,  granted  and  withheld  and  that  supremacy  can 
be  given  to  weakness,  when  it  is  brought  into  conflict  with 
strength.  These  notions,  however  untrue,  have  nevertheless 
exerted  a  powerful  influence  over  our  politics.  What  can  any 
thinking  man  say  of  them,  except  that  they  are  the  very 
formulas  of  chaos,  anarchy  and  misrule  ?  If  they  prevail, 
the  Constitution  cannot  stand  the  shock  of  this  war.  They 
have  been,  indeed,  to  a  great  extent,  the  cause  of  the  war. 
If  the  Government  is  to  be  saved,  it  must  be  by  the  truth  that 
is  in  the  Constitution,  not  by  its  errors  or  by  the  erroneous 
interpretations  put  on  it.  It  has  truth  enough  to  save  it, 
if  the  truth  be  allowed  legitimate  sway.  It  has  distributed 
power  among  three  departments,  the  Executive,  the  Judiciary, 
and  the  Legislative.  The  Legislature  makes  laws,  and  repre- 
sents the  people,  and  is  therefore  supreme.  This  truth  is 
a  natural  law ;  it  has  carried  our  English  ancestors  through 
the  stress  of  many  dangers  and  it  can  save  us  in  this, — the 
first  storm  our  ship  of  state  has  encountered. 


The  above  argument  may  be  illustrated  by  recent  ex- 
amples in  our  history.  We  have  said  already  that  a  Govern- 
ment must  have  power  sufficient  to  protect  the  public  safety, 
and  that,  should  the  limits  of  its  authority  be  found  too 
narrow  for  that  purpose,  those  limits  will  be  broken,  for 
necessity  supersedes  all  law.  We  have  said  that  a  case  might 
occur,  when  the  Constitution  would  be  infringed  by  the  Lcgis- 


A    WRITTEN    CONSTITUTION.  61 

laturc  or  by  the  Legislature  and  Executive  together  Avith  the 
consent  and  approbation  of  the  people,  Avhen  it  was  impossible 
or  imprudent  to  await  or  to  attempt  the  uncertain  and  tedious 
process  appointed  in  the  Fifth  Article.  We  have  said  also, 
that  the  Judiciary  is  naturally  the  weakest  department  of  the 
Government  and  should  a  contest  arise  between  it  and  the 
Legislature,  the  latter  would  prevail. 

All  these  events  have  happened.  On  the  4th  March,  18(31, 
Mr.  Lincoln  became  President  of  the  United  States.  In  the 
interval  between  his  election  and  his  inauguration,  a  rebellion, 
planned  in  expectation  of  these  events,  was  organized.  Its 
object  was  to  dissolve  the  Union  and  to  erect  an  independent 
nation  in  the  South.  Many  of  the  leading  conspirators  were 
in  Congress  and  in  the  Cabinet  of  the  President,  Mr.  Bucha- 
nan, and  employed  their  official  authority  to  destroy  the 
Government.  The  rebellion  had  assumed  formidable  dimen- 
sions before  Mr.  Lincoln  came  into  office.  It  was  enlistincf 
and  equipping  troops  and  organizing  civil  power.  When 
Mr.  Lincoln  became  President,  he  found  Washington  threat- 
ened, surrounded  by  hostile  territory,  its  population  and  that 
of  the  adjacent  States  disaffected  and  ripe  for  insurrection, 
the  Treasury  plundered,  arsenals  stripped,  the  army  and  navy 
scattered  and  treason  lurking  among  its  officers  and  in  every 
civil  department  also. 

Prompt  measures  were  evidently  necessary,  if  the  President 
meant  to  save  the  nation,  and  he  took  them.  Congress  Avas 
not  in  session.  Without  hesitation  he  exercised  powers,  which, 
if  not  really  doubtful,  according  to  the  just  construction  of  the 
Constitution,  were  doubted  then  and  since,  by  himself  and 
otliers.  He  called  out  troops,  he  enlarged  the  army  and 
navy,  he  arrested  and  confined  persons  suspected  of  trea- 
sonable acts  or  designs.  When  Congress  assembled,  they 
ratified,  expressly  or  impliedly,  everything  he  had  done.  The 
arrests  continued.  The  freedom  of  the  press  was  suspended, 
members  of  a  State  Legislature  were  imprisoned  on  the  eve  of 
its  meeting  ;  over  the  whole  country  was  stretched  the  arm  of 
a  discretionary  power,  paramount  to  the  Constitution.     Con- 


62  THE    TRIAL     OF    THE     CONSTITUTION. 

gress  did  not  interfere,  and  up  to  this  moment,  still  in  session, 
has  not  interfered,  even  by  remonstrance. 

On  the  contrary,  as  the  strength  of  the  rebellion  and  the 
necessity  for  extreme  measures  have  become  apparent,  Con- 
gress has  entertained  and  is  now  debating  plans  which  greatly 
exceed  the  powers  granted  by  the  Constitution,  plans  for  a 
general  emancipation  of  all  the  slaves  in  the  South,  for  the 
confiscation  without  trial  of  the  property  of  rebels,  for  reduc- 
ing the  rebellious  States  to  the  condition  of  Territories,  and 
other  projects,  some  of  which,  though  opposed  on  the  ground 
that  they  are  unconstitutional,  will  no  doubt  be  executed. 
Meanwhile,  the  people  are  thoroughly  aroused  by  the  war, 
their  intelligence  is  called  into  eager  exercise,  the  press  carries 
into  every  remote  corner  information  of  all  that  is  done, 
and  countless  debates  and  discussions  in  and  out  of  Con- 
gress. Yet  the  people  give  to  these  proceedings  their  hearty 
approbation.  They  see  the  Government  overstep  what  have 
generally  been  considered  its  constitutional  limits  every  day, 
and  they  rejoice. 

In  this  drama  the  Judiciary  has  not  been  wholly  an  idle 
spectator.  But  it  has  no  power  of  spontaneous  action,  and 
once  only  has  the  hand  of  a  suitor  unlocked  its  lips.  In  Mer- 
riman's  case  it  spoke,  and  it  spoke  to  denounce  the  action  of 
the  Executive.  But  its  decision  did  not  even  affect  the  case 
before  the  Court,  and  although  made  by  the  Chief  Justice 
himself,  has  been  Avholly  disregarded  both  by  Congress  and 
the  President. 

Now  what  is  the  meaning  of  all  this  ?  Does  it  not  show 
that  the  Judiciary  is  weak,  and  the  Executive  and  the  Legis- 
lature strong  ?  Strong  from  inherent  power,  but  a  hundred 
fold  strong  when  supported  by  the  people.  Does  it  not  prove 
that  the  power  of  the  people  cannot  be  checked  and  curbed 
by  Fifth  Articles  ?  Who  but  a  madman  would  now  propose 
recourse  to  the  cumbrous  forms  of  amendment  appointed  by  the 
Constitution  ?  Are  not  the  people  now  exercising  their  "  re- 
served powers"  by  acquiescence,  by  eager  support,  by  enthusi- 
astic applause  ?  How  else  can  they  exert  these  powers  ?  and  if 
they  cannot,  is  it  not  clear  that  they  have  not  been  reserved  ? 


A    W  11  ITT  EX     CONSTITUTION.  63 

That  Government  must  and  does,  in  the  nature  of  things  pos- 
sess, not  a  part,  but  the  whole  power  of  the  people  ?  If  the 
people  are  dissatisfied  with  what  has  been  done,  thej  can  say 
so  at  the  next  election,  and  then  it  can  be  undone. 

The  superiorit}^  of  legislative  to  judiciial  authority  may  be 
illustrated  by  another  example.  As  already  stated,  Congress 
has  from  the  beginning  exercised  complete  authority  over  the 
Territories  on  all  subjects,  including  slavery.  In  the  year 
1856  the  Supreme  Court  discovered  that  this  authority  was 
not  granted  in  the  Constitution,  so  far  as  slavery  was  con- 
cerned ;  that  slavery  existed  potentially  in  all  the  Territories, 
by  virtue  of  the  Constitution,  and  that  it  is  the  duty  of  Con- 
gress to  protect  it  whenever  it  should  exist  in  them  as  a  fact. 
But  Congress  refused  to  accept  that  decision  of  the  Court,  the 
people  have  reversed  it,  and  it  will  probably  be  reversed  in 
express  and  formal  terms  by  Congress.*  What  can  the  Su- 
preme Court  do  ?  The  Executive,  the  Legislature,  and  the 
people  are  all  opposed  to  it.  It  is  utterly  powerless.  Yet,  it  is 
said,  the  case  of  Dred  Scott  is  law  until  reversed  by  the  Court. 
It  would  not  be  either  a  safe  or  an  easy  process  to  reverse  it 
by  the  Fifth  Article. 

All  the  measures  executed  or  proposed,  for  carrying  on  the 
war  are  defended  on  the  ground  that  they  are  necessary  to 
save  the  nation.  Is  not  this  another  way  of  saying  that  Go- 
vernment has  unlimited  powers?  They  are  justified  as  war 
measures.  The  Constitution,  it  is  contended,  has  invested  the 
Government  Avith  power  to  quell  rebellion  by  force  of  arms, 
and  w^ar  has  its  own  laws,  paramount  to  all  others.  The 
country  is  therefore  said  to  be  under  martial  law.  But  war  is 
another  name  for  necessity,  and  authority  to  meet  it  is  sought 
outside  of  the  Constitution,  which  f^oes'provide  for  a  state  of 
war,  but  not  expressly  or  sufficiently.  Would  it  not  be  as 
logical  and  more  candid  to  say  at  once,  that  the  whole  object 
of  any  Constitution  must  be  the  defence  of  the  nation  and  the 
Government,  and   therefore   no   measures  necessary  for  that 

*  This  has  since  been  done  by  a  bill  prohibiting  slavery  forever  in  all  the 
Territories. 


64  THE    TRIAL     OF    THE    CONSTITUTION, 

purpose  can  be  unconstitutional  ?  That  the  people  must  be 
supposed  to  have  delegated  for  this  supreme  end  all  their 
power,  even  the  power  of  transcending  the  limits  of  the  Con- 
stitution ?  That  when  this  is  done  with  the  consent  and  ap- 
probation of  the  great  mass  of  the  people,  such  consent  and 
approbation  must  be  regarded  as  a  ratification,  complete  and 
effectual,  as  if  given  according  to  the  forms  of  the  Consti- 
tution. 


I  have  thus  endeavored  to  show  that  the  doctrine  that  tlie 
Judiciary  has  power  to  preserve  the  Constitution  and  to  keep 
the  other  departments  within  their  appointed  bounds,  is  not  in 
accordance  with  those  natural  laws  to  which  every  government 
must  conform.  That  such  power,  therefore,  has  no  existence, 
for  it  cannot  be  created  by  the  vote  of  a  Convention.  I  have 
endeavored  to  show  that  by  the  same  natural  laws  the  Consti- 
tution is  not  a  finality,  to  be  construed  now  as  it  was  under- 
stood, or  supposed  to  have  been  understood,  at  the  time  of  its 
adoption,  without  reference  to  usage  and  custom  and  changes 
of  public  opinion.*  I  have  endeavored  to  prove  also  that 
such  a  thing  as  a  Government,  w"ith  departments  possessing 
co-ordinate  and  coequal  powders  cannot  exist,  but  that  of  the 
three  departments,  the  Legislature  or  law-making  power,  is  of 
necessity  supreme,  and  the  delegate  of  the  whole  power  of  the 
people.  Let  us  now  inquii'e  what  the  Constitution  does  really 
say,  or  what  may  be  fairly  implied  from  its  language  on  these 
points.  We  know^  that  it  must  conform  to  the  truth  of  nature 
or  perish.  But  the  discrepancy  may  be  partial  only,  and  the 
vital  force  of  the  remainder  may  be  sufficient  to  save  the  struc- 
ture. Or  it  may  confain  within  itself  renovating  and  redeem- 
ing principles,  that  will  cause  a  new  growth  to  complete  its 
symmetry  and  secure  its  life  and  efficiency.  We  may  be  sure 
of  one  thing,  that  whatever  portion  of  the  Constitution  is  un- 
natural, that  portion  must  be  got  rid  of  by  some  process  or 

*  See  report  of  tlie  decisions  of  the  Supreme  Court  of  tlie  United  States. 
in  the  case  of  Dred  Scott  vs.  Sanford,  420. 


A    WRITTEN     CONSTITUTION.  65 

other ;  and  now  in  the  midst  of  war  and  looking  to  the  pro- 
bable and  possible  results  of  war,  it  is  Avorth  while  to  inquire 
if  that  process  may  be  easy,  peaceful,  and  constitutional,  or 
whether  it  must  be  violent  and  destructive ;  whether  we  too, 
like  our  English  ancestors,  cannot  make  changes  in  our  organic 
law,  without  a  revolution. 

And  first  as  to  the  alleged  check  of  the  Judiciary.  The 
provisions  applicable  to  this  subject  are  as  follows :  "  The 
Judicial  power  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  au- 
thority." "This  Constitution,  and  the  laws  of  the.  United 
States,  Avhich  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land  ;  and 
the  judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding. 

If  we  could  read  these  clauses  without  reference  to  contem- 
poraneous or  subsequent  interpretation,  their  meaning  would 
be  clear  enough  and  their  necessity  obvious.  This  Govern- 
ment is  a  union  of  States,  sovereign  within  their  appropriate 
limits.  It  is  also  a  nation,  with  a  central  Government,  for 
national  purposes,  paramount  to  those  of  the  States.  A  uni- 
form law,  therefore,  is  essential,  which  there  could  not  be,  if  the 
various  States  could  each  put  their  own  interpretation  on  the 
Constitution,  or  attempt  to  repeal  a  law  of  the  United  States. 
To  say,  therefore,  that  the  judges  of  the  States  are  bound, 
not  by  the  laws  and  constitutions  of  their  respective  States, 
but  by  the  laws  and  Constitution  of  the  United  States,  when 
the  two  are  in  conflict,  is  merely  to  declare  the  purpose  of  the 
Constitution  itself,  that  Federal  or  National  shall  be  superior 
to  State  authority. 

When  the  Supreme  Court,  therefore,  overrules  a  decision  of 
a  State  Court  or  sets  aside  a  law  or  Constitution  of  a  State  as 
invalid,  because  inconsistent  with  a  law  or  with  the  Consti- 
tution of  the  United  States,  it  is  acting  in  its  legitimate 
sphere,  as  the  expounder,  the  interpreter,  the  minister  and 

5 


66  THE     TRIAL     OF     THE     CONSTITUTION. 

subordinate  of  its  own  law-making  power.  The  Federal 
Courts  are  superior  to  the  State  Courts,  just  as  the  Federal 
Legislature  is  superior  to  the  Legislatures  of  the  States,  but  it 
does  not  follow  that  the  Federal  Courts  are  superior  to  the 
Federal  Legislature,  nor  is  that  conclusion  necessarily  implied 
in  the  language  of  the  Constitution.  The  Constitution  and 
the  laws  made  in  pursuance  thereof,  shall  be  the  supreme 
law  of  the  land.  The  Avord  pursuance  has  two  meanings  in 
popular  use.  One  of  these  is  confo7'mahly  to,  but  the  other  and 
more  correct  interpretation,  because  in  accordance  with  the 
signification  of  the  verb  whence  it  is  derived,  is,  in  prosecution 
or  execution  of  anything.  The  first  part  of  the  clause  is  con- 
nected with  the  second  by  the  word  "  and,"  thus  controlling 
the  second,  and  giving  to  the  laws  and  Constitution  of  the 
General  Government,  supremacy  over  those  of  the  States, 
making  the  former,  indeed,  "  the  supreme  law  of  the  land." 
The  use  of  the  word  "  supt-eme  "  in  any  other  sense  was  un- 
necessary, for  supremacy  was  implied  in  the  words  Constitu- 
tion and  laws.  It  is  fair  to  suppose  that  if  the  framers  in- 
tended to  invest  the  Judiciary  with  the  extraordinary  political 
power  of  controlling  the  Legislature,  they  would  have  said  so 
in  explicit  terms,  for  "judicial"  does  not  mean  political  power, 
more  especially  as  the  Judiciary  has  no  such  power  in  the 
English  Constitution,  which  was  necessarily  their  model,  nor 
in  any  other  Constitution  known  to  history.  Tliey  did  intend 
to  make  the  General  Government,  in  its  sphere,  supreme  over 
the  State  Governments,  and  they  expressed  that  intention  in 
this  very  article,  and  in  language  not  to  be  misunderstood. 
There  is  nothing  in  that  language  to  show  that  they  had  any 
other  meaning,  nothing  to  show  that  they  intended  to  invest 
the  weakest  of  the  two  departments  of  the  Government  which 
are  necessarily  subordinate,  with  controlling  power  over  both 
the  others. 

But  I  bow  to  authority.  The  words  "  in  pursuance  thereof," 
have  been  interpreted  to  mean  in  conformity  therewith,  and 
the  word  "supreme"  has  been  held  to  apply  to  the  Federal 
as  well  as  the  State  Governments.  I  shall  not  imitate  the  bad 
example  I  have  censured,  by  attempting  to  construe  the  Con- 


A     WRITTEN     CONSTITUTION.  67 

stitution  by  itself  alone,  without  regard  to  practice  and  prece- 
dent and  judicial  opinion,  but  proceed  to  examine  the  law  as 
these  have  made  it. 

No  elaborate  investigation  is  necessary  for  this  purpose, 
for  the  principle  that  the  Federal  Courts  have  power  to 
declare  an  act  of  Congress  which  violates  the  Constitution, 
null  and  void,  is  too  well  established  to  be  questioned. 
The  first,  and  perhaps  the  highest,  authority  on  the  sub- 
ject is  that  of  Hamilton,  in  the  Federalist  (No.  78),  highest 
because  he  helped  to  make  the  Constitution.  He  says : 
"  The  Courts  were  designed  to  be  an  intermediate  body  be- 
tween the  people  and  the  Legislature,  in  order  to  keep  the 
latter  within  the  limits  assigned  to  their  authority.  The 
interpretation  of  the  laws  is  the  proper  and  peculiar  province 
of  the  Courts.  A  Constitution  is,  in  fact,  and  must  be,  re- 
garded by  the  Judges  as  the  fundamental  law.  It  must,  there- 
fore, belong  to  them  to  ascertain  its  meaning,  as  well  as  the 
meaning  of  any  particular  act  proceeding  from  the  Legislative 
body.  If  there  should  happen  to  be  an  irreconcilable  vari- 
ance between  the  two,  that  which  has  the  superior  obligation 
and  validity  ouglit,  of  course,  to  be  preferred  ;  in  other  words, 
the  Constitution  ought  to  be  preferred  to  the  statute  ;  the 
intention  of  the  people  to  that  of  their  agents.  .  .  .  Where 
the  will  of  the  Legislature,  declared  in  its  statutes,  stands  in 
opposition  to  that  of  the  people  declared  in  the  Constitution, 
the  Judges  ought  to  be  governed  by  the  latter  rather  than  the 
former." 

But  a  statute  is  not  to  be  described  as  the  will  of  the 
Legislature,  but  of  the  people  who  elected  the  Legislature. 
The  meaning  of  the  above  language  then  is,  that  when  the 
will  of  the  people  of  1787,  declared  in  the  Constitution,  is  in 
opposition  to  the  will  of  the  people  of  1862,  represented  in  the 
Legislature,  the  Judges  are  to  be  governed  by  the  former.  It 
may  be  said,  indeed,  that  the  Constitution  is  to  be  regarded 
as  the  continuing  and  paramount  will  of  the  people,  until 
altered  in  the  appointed  manner.  But,  should  the  Avill  of  the 
people  change  and  the  appointed  mode  of  alteration  be  found 
impracticable,  the  consequence  would  be  that  the  people  of 


68  THE    TRIAL    OF     THE     CONSTITUTION. 

1862,  must  submit  to  the  people  of  1787.  And  wliat  branch  of 
the  Governmenc  is  selected  to  perforin  the  difficult  task  of 
coercing  them?  The  Judiciary;  that  "which  Mr.  Hamilton,  in 
the  same  essay,  had  just  declared  to  be  "  beyond  compari- 
son, the  weakest  of  the  three  departments  of  power,"  and 
quoted  Montesquieu  for  saying  that  it  "is  next  to  nothing." 
In  such  a  crisis  as  the  present,  how  can  its  puny  arm  resist 
the  Executive,  the  Legislature  and  the  people,  the  first  two 
making  changes,  and  the  last  consenting  to  them  ? 

It  is  unnecessary  to  encumber  our  pages  with  a  list  of  cases 
in  support  of  the  principle  laid  down  by  Mr.  Hamilton.  The 
best  Avriters  speak  of  it  as  a  well-settled  doctrine  of  our  law. 
It  is  thus  forcibly  stated  by  Chancellor  Kent:  "The  people 
of  the  United  States  have  declared  the  Constitution  to  be  the 
Supreme  Law  of  the  land,  and  it  is  entitled  to  universal  and 
implicit  obedience.  Every  Act  of  Congress  and  every  Act  of 
the  Legislatures  of  the  States,  and  every  part  of  the  Consti- 
tution of  any  State,  which  is  repugnant  to  the  Constitution  of 
the  United  States,  is  necessarily  void.  This  is  a  clear  and 
settled  principle  of  constitutional  jurisprudence.  The  Judi- 
cial power  of  the  LTnion  is  declared  to  extend  to  all  cases  of 
law  and  equity,  arising  under  the  Constitution ;  and  to  the 
Judicial  power  it  belongs,  whenever  a  case  is  judicially  before 
it,  to  determine  what  is  the  Supreme  Law  of  the  land.'"* 

So  spake  a  great  Judge  and  lawyer.  But,  regarding  the 
subject  from  another  point  of  view,  that  of  a  law-maker,  it  is 
obvious,  from  this  language,  how  weak  a  check  the  Judiciary 
must  be.  "  Whenever  a  case  is  judicially  before  it,"  the 
Court  may  declare  the  supreme  law,  in  opposition  to  the 
Legislature.  But  Avhat  provision  is  there  for  violations  of  the 
Constitution,  that  for  various  reasons — heretofore  mentioned 
— do  not  give  rise  to  "cases"  or  controversies  between  indi- 
viduals, and  cannot,  therefore,  be  brought  before  the  Court  ? 
For  these  there  is  no  check,  yet,  they  may  be  of  a  character 
to  alter  the  whole  structure  of  the  Government.     What,  then, 

*  1  Kent's  Com.,  29:5. 


A     WRITTEN     CONSTITUTION,  69 

are  we  to  think  of  a  power  thus  partial  in  its  operation,  and 
which  cannot  act  at  all  when  most  needed  ? 

The  impossibility,  if  not  absurdity,  of  attempting  to  make 
the  Judiciary  paramount  to  the  Legislature,  seems  to  have 
quite  bewildered  Judge  Story,  in  his  discussion  of  the  subject, 
for  it  is  not  easy,  at  least  for  an  "  unlearned  "  reader,  to  ar- 
rive at  any  definite  conclusion  from  what  he  says.  He  tells 
us  that,  "  In  many  cases  the  decisions  of  the  Legislative  and 
Executive  departments  become  final  and  conclusive,  being 
incapable  of  revision.  Thus,  in  measures  of  an  exclusively 
political  Legislative  or  Executive  character,  it  is  plain,  that 
as  the  supreme  authority,  as  to  these  questions,  belongs  to  the 
Executive  and  Legislative  departments,  they  cannot  be  re- 
examined elsewhere.  Thus,  Congress  having  power  to  de- 
clare war,  to  levy  taxes,  to  appropriate  money,  to  regulate 
intercourse  and  commerce  with  foreign  nations,  their  mode  of 
executing  these  powers  can  never  become  the  subject  of  re- 
examination in  any  other  tribunal.  So  the  power  to  make 
treaties  being  confided  to  the  President  and  Senate,  when  a 
treaty  is  properly  ratified,  it  becomes  the  law  of  the  land, 
and  no  other  tribunal  can  gainsay  its  stipulations.  Yet,  cases 
may  be  readily  imagined  in  which  a  tax  may  be  laid,  or  a 
treaty  made,  upon  motives  or  grounds  wholly  beside  the 
intention  of  the  Constitution.  The  remedy,  however,  in  such 
cases,  is  solely  by  an  appeal  to  the  people  at  the  elections,  or 
by  the  salutary  power  of  amendment,  provided  by  the  Consti- 
tution itself."* 

This  opens  an  extensive  field  in  Avhich  the  limited  powers 
of  the  Government  are  unlimited,  so  far  as  the  Judiciary  is 
concerned,  and  war,  taxation,  commerce  and  foreign  in- 
tercourse embrace  large  interests  of  the  people.  Again,  he 
says :  "  If  the  Judicial  department  alone  should  attempt  any 
usurpation.  Congress,  in  its  legislative  capacity,  has  full 
power  to  abrogate  the  injurious  effects  of  such  a  deci- 
sion  The  worst  that  could  happen  from  a  wrong 

decision  of  the  Judicial  department,  Avould  be  that  it  might 

*■  Story  on  the  Constitution,  ^  374. 


70  THE     TRIAL     OF     THE     CONSTITUTION. 

require  the  interposition  of  Congress.*  If  the  usurpation 
should  be  by  the  Judiciary,  and  arise  from  corrupt  motives, 
the  poAver  of  impeachment  would  remove  the  offender  ;  and  in 
most  other  cases,  the  Executive  and  Legislative  authorities 
could  interpose  an  efficient  barrier.  A  declaratory  or  pro- 
hibitory  law  would  in  many  cases  be  a  complete  remedy."  1[ 

Here,  then,  we  have  the  checking  power  checked,  Execu- 
tive and  Legislative  now  subordinate  and  now  pai-amount  to 
the  Judiciary,  and  Congress  authorized  to  declare  what  is  the 
supreme  law,  in  opposition  to  the  Judges.  This  extraordinary 
confusion  of  ideas  is  the  result  of  an  effort  to  carry  out  false 
principles,  from  which  no  consistent  or  harmonious  conse- 
quences can  be  deduced.  A  Government  limited  by  internal 
power  is  an  impossibility.  There  is  no  such  thing  in  nature 
as  the  delegation  of  a  part  only  of  the  people's  power.  It  is 
impossible  that  the  weakest  of  the  three  Departments  of  Go- 
vernment shall  exercise  control  over  the  others,  for  to  govern 
is  eternally  the  attribute,  not  of  weakness  but  of  strength, 
which  belongs,  under  republican — more  especially  under  demo- 
cratic— institutions,  to  the  Legislature. 

The  attempt  to  erect  the  Judiciary  into  a  tribunal  to  decide 
upon  violations  of  the  Constitution,  grew  out  of  the  attempt  to 
make  a  Government  of  limited  powers.  J  Restricted  authority 
was  intrusted  to  the  Departments  by  the  people,  but  "  quis 
ciistodiet  ipsos  custodeii ;''  who  shall  keep  those  Departments 
within  their  appointed  bounds?  "One  of  them,"  says  Mr. 
Hamilton.  But  suppose  that  one  transgresses?  "Then  ano- 
ther of  them,"  says  Mr.  Story.  Which,  therefore,  is  supreme? 
"ISTeither  of  them,"  say  Mr.  Jefferson  and  Mr.  Bates;  "all 
are  equal,  each  is  sovereign." 

If  it  be  a  vain  attempt  to  make  things  equal  that  by  nature 
are  unequal,  and  to  divide  that  which  is  by  nature  indivisible, 
it  is  also  useless  to  try  to  alter  the  character  of  judicial  power 
and  convert  it  into  political  power.     The  makers  of  our  Con- 

*  Story  on  the  Coustitnlion,  §  ;^77-384. 
'  t  Story  oil  the  Constitution,  I  394. 

X  Federalist.,  No.  81. 


A     W  K  I  T  T  E  N     CONSTITUTION.  71 

stitutioii  dreaded  the  proverbial  instability  of  popular  opinion. 
They  feared  to  commit  their  Avork  to  its  uncertain  and  danger- 
ous billows.  Hamilton,  Washington  and  others,  regarded  de- 
mocracy as  a  very  doubtful  experiment.  They  made  the  Con- 
stitution as  conservative  as  they  dared  to  make  it,  but  they 
knew  well  it  was  a  fragile  bark,  freiglited  with  a  precious 
cargo,  and  launched  on  the  waves  of  a  treacherous  and  tem- 
pestuous sea.  They  looked  in  vain  for  the  elements  that  give 
strength  and  endurance  to  the  British  Government,  the  Church, 
the  aristocracy,  the  throne,  each  connected  with  the  past  and 
the  future,  each  pi-esenting  bulwarks  like  rocks  to  the  surges 
of  popular  passion.  Tiie  Convention  could  use  none  of  these 
buttresses  for  their  edifice,  because  the  materials  out  of  which 
to  construct  them  did  not  exist  in  the  country.  Both  Legis- 
lative and  Executive  power  must  be  made  the  organs  of  the 
masses.  Executive  power,  in  their  system,  must  be  merely 
executive.  It  could  not,  like  the  English  Throne,  be  the  re- 
presentative of  the  whole  people, — not  of  a  party, — the  visible 
manifestation  of  the  collective  majesty  of  the  nation,  connected 
with  the  past  by  its  traditions,  with  the  future  by  its  interests 
and  hopes,  and  the  type  of  permanence  in  the  midst  of  change; 
therefore  the  constant  refuge  and  protection  of  a  minority  and 
of  a  weaker  party  in  the  State.*  The  sway  of  the  people, — 
that  is  to  say,  of  a  majority, — would  act,  it  was  easy  to  see, 
with  full  and  unrestrained  force  on  the  Constitution,  on  both 
branches  of  the  Legislature,  and  on  the  Executive,  flow, 
therefore,  was  the  Government  to  be  protected  from  inces- 
sant changes  ?  How  were  the  States  to  be  kept  within  their 
orbits, — how  the  General  Government  to  be  restrained  from 
usurping  power, — how  the  different  Departments  to  be  held  to 
their  appointed  tracks  ?  Was  it  not  evident  that  the  Legisla- 
ture, representing  the  unchecked  will  of  the  majority  of  the 
people,  would  speedily  engross  all  power  ?  The  dread  of  the 
Legislature  is  seen  throughout  the  pages  of  the  Federalist. 
In  England  the  Peers  represent  a  class,  the  Commons  other 

*  For  the  important  part  played  by  Royalty  as  the  representative  of  the 
people,  in  European  history,  see  Guizot's  History  of  Civilization. 


72  THE     TRIAL     OF     THE     CONSTITUTION. 

classes ;  but  the  King  represents  all.  His  power,  his  dignity, 
his  perpetuity,  are  derived,  not  from  a  party  or  a  class,  but 
from  the  nation.  In  America  the  Senate  represents  the  States 
as  such,  the  House  the  people,  the  President  the  people ;  but 
really  and  practically  they  all  represent  a  party,  because 
elected  by  a  party.  If  there  is  a  conflict  between  them,  it  is 
a  conflict  of  parties  ;  if  they  all  agree,  it  is  because  they  are 
all  elected  by  the  same  dominant  party.  Neither  of  them  is 
elevated  above  the  reach  of  party  influence, — that  is  to  say,  of 
capricious,  passionate,  often  ignorant  and  reckless  popular  in- 
fluence. Neither  of  them  expresses  the  idea  of  nationality,  of 
endurance.  Neither  of  them  can  be  a  secure  shelter  for  a  mi- 
nority, for  a  defeated  and  oppressed  party,  or  a  menaced  or 
oppressed  class. 

This  was  evident  to  the  Convention,  but  where  was  the 
remedy  ?  There  are  but  three  branches  of  Government,  and 
the  Legislative  and  Executive  were  of  necessity  yielded  to  the 
people.  The  Judiciary  alone  was  left.  It  is  naturally  the 
representative  of  the  law.  They  made  it  tlie  representative  of 
the  Constitution,  Avhich  they  called  the  Supreme  Law.  They 
tried  to  give  stability  to  this  supreme  law  by  making  it  almost 
unalterable,  and  by  the  fiction  of  the  "  reserved  powers"  of 
the  people,  and  they  set  up  the  Judiciary  as  the  sentinel  over 
the  Constitution,  and  the  agent  and  representative  of  these 
reserved  powers.  Alone  of  all  the  departments,  it  was  not 
elected  by  the  people,  nor  was  it  dependent  on  them,  or  on 
any  other  power,  for  its  continuance  in  office,  or  for  its  emolu- 
ments. It  could  not,  therefore,  be  affected  by  the  fluctuating 
tides  of  party  power,  or  by  the  wihl  sallies  of  popular  senti- 
ment. If  the  Government  was  not  to  be  a  total  failure  in  its 
normal  and  healthy  action.  Judges  would  be  appointed  of 
whom  conservative  sentiments  might  safely  be  predicated,  be- 
cause of  their  age,  their  learning,  and  their  virtues.  The 
Supreme  Court  Avas,  therefore,  the  fit  representative  of  the 
idea  of  stability,  of  perpetual  endurance,  of  the  Constitution, 
the  one  thing  intended  to  be  permanent  amid  the  ever-shifting 
sands  of  democracy. 

But  man  pioposes  and  God  disposes  by  his  eternal  laws. 


A     WRITTEN     CONSTITUTION.  73 

Not  this,  but  something  far  different  is  the  true  function  of  a 
Judiciary.  Its  natural  pi'ovince  is  to  interpret  and  apply  the 
law;  the  Imo  made  for  it  hy  the  law-making  power.  It  must 
work  after  its  kind,  like  steam  or  acid  and  alkali,  or  not  at 
all.  To  make  it  the  representative  of  the  reserved,  or  any 
other  power  of  the  people,  to  place  it  over  the  Legislature,  is 
to  invest  it  with  political  and  deprive  it  of  judicial  character, 
or  rather  to  destroy  it  altogether.  The  attributes  of  both  it 
cannot  have.  It  cannot  play  the  part  of  ro3^alty  and  be  the 
representative  of  the  Avhole  people,  because  it  cannot  take  part 
with  a  class  or  interest  which  may  be  threatened  with  injury  ; 
it  represents  only  the  law,  which  knows  no  class  or  interest. 
It  cannot  protect  the  Constitution,  because,  as  already  said,  it 
has  no  power  of  spontaneous  action,  and  the  Constitution  may 
be  destroyed  before  its  face,  and  it  cannot  move  a  finger,  un- 
less the  breach  be  one  that  can,  and  actually  does  give  rise  to 
a  case. 

Constitutional  questions,  moreover,  are  generally  party 
questions.  The  most  important  of  them  must  almost  neces- 
sarily assume  this  character,  and  excite  feeling  and  passion 
according  to  their  importance.  To  decide  such  questions 
would  necessarily  give  to  the  Court  a  partisan  aspect,  make  it 
apparently  the  champion  of  one  set  of  opinions,  of  a  class,  a 
section,  or  an  interest ;  and  as  judges  are  after  all  men,  would 
have  a  tendency  to  stimulate  their  own  party  feelings,  and 
bias  their  judgment.  If  they  possess  political  power,  they  will 
necessarily  possess  party  power;  they  will  be  tempted  to  ex- 
ercise it  for  partisan  objects  ;  they  will  be  appointed,  there- 
fore, with  reference  to  those  objects,  and  the  Judiciary  would 
thus  morally  be  swept  into  the  vortex  of  the  elections.  It 
would  no  longer  be  a  Judiciary,  but  a  party  organ.  It  would 
represent  not  stability,  but  instability,  and  become,  not  a  judge, 
but  an  advocate.  The  Courts  would  thus  be  placed  in  a  false 
■  position.  They  would  lose  the  confidence  of  the  people,  and 
when  that  is  lost,  reverence  for  the  law  and  security  for  all 
right  will  soon  be  lost  with  it. 

In  the  Federalist  and  the  Commentaries  of  Kent  and  Story, 
which  treat  of  our  Constitution,  it  is  assumed  that  any  viola- 


74  THE     TRIAL     OF     THE     CONSTITUTION. 

tion  of  its  provisions  must  be  nicade  with  a  dishonest  purpose, 
and  the  Judiciai-y  is  described  as  a  check  upon  corrupt  usurpa- 
tion of  power.  The  exercise  of  unconstitutional  or  doubtful 
authority,  for  a  worthy  and  beneficial  object  or  as  a  necessity 
to  save  the  Government  from  destruction,  is  not  supposed. 
The  plan  of  amendment  provided  in  the  Fifth  Article,  it  is 
taken  for  granted,  will  be  adopted,  and  prove  sufiicient  for  all 
such  cases.  But  should  it  not  be  sufficient,  should  there  be  no 
time  to  apply  it,  or  should  its  obvious  unfitness  prevent  any 
party  froui  even  thinking  of  appealing  to  it,  the  position  of 
the  Supreme  Court  would  become  one  of  much  embarrassment. 
And  such  is  precisely  the  case  now  presented.  The  Govern- 
ment has  exercised  and  will  exercise  doubtful  powers.  Its 
opponents  say  that  it  has  already  exceeded  the  limits  imposed 
by  the  Constitution ;  its  friends,  before  the  w^ar  is  over,  will 
probably  be  obliged  to  confess  that  it  has  done  so.  It  has 
.acted  in  good  faith.  It  has  acted  under  the  pressure  of  an 
extreme  emergency.  It  has  been  sustained  by  a  vast  majority 
of  the  people.  Yet,  for  the  Courts,  we  are  taught,  the  Con- 
stitution is  the  only  law. 

Must  a  Court,  then,  put  itself  in  opposition  to  the  Govern- 
ment, and  declare  null  and  void  important  measures  intended 
for  the  defence  of  the  nation,  and  received  as  such  with  accla- 
mations by  the  people  ?  The  Court  would  thus  become,  in  the 
eyes  of  the  people,  the  champion  of  secession,  the  friend  and 
ally  of  rebellion  and  treason.  Yet  what  other  course  is  open, 
if  it  be  the  right  and  the  duty  of  the  Judges  to  set  aside,  as 
invalid,  every  act  of  the  President  or  of  Congress  which  ex- 
ceeds the  limits  of  their  prescribed  authority  ?  The  Judiciary 
is  called  the  appointed  guardian  of  the  Constitution, — the 
representative  of  its  stability,  its  perpetuity.  But  should  the 
Court  attempt  to  maintain  this  character,  a  contest  between  it 
and  other  branches  of  the  Government  would  be  inevitable. 
In  this  contest,  if  the  Court  be  sustained  by  a  considerable 
party  among  the  people,  it  will  be  virtually  the  leader  of  that 
party,  and  the  result  may  be  civil  war,  not  between  North  and 
South  only,  but  througliout  the  country, — not,  surely,  a  con- 
sistent or  appropriate  position  for  the  Judiciary  to  hold.     On 


A    WRITTEN     CONSTITUTION.  75 

the  other  hand,  if  the  Government  be  sustained  by  the  people, 
the  decrees  of  the  Court  will  be  wholly  disregarded ;  it  will 
lose  influence  and  respect,  and  with  these,  dignity  and  au- 
thority. Already,  as  before  stated,  the  Court  in  the  begin- 
ning of  the  war,  attempted  to  set  itself  against  the  Govern- 
ment, and  its  opposition  was  instantly  swept  aside  by  the 
impetuous  rush  of  events,  of  opinion  and  of  passion.  Its  voice 
could  scarcely  be  heard  amid  the  tumult  and  din  of  elemental 
strife.  As  the  war  advances,  the  ability  of  the  Court  to  check 
the  Government  is  not  likely  to  increase.  It  will  become  evi- 
dent to  all  men,  indeed,  that  it  is  no  check  at  all ;  that  judi- 
cial is  something  very  different  in  its  nature  from  political 
power,  and  that  a  judiciary  must  be  judicial,  or  cease  to  exist. 


What,  then,  is  the  authority  and  duty  of  the  Supreme  Court 
to  preserve  and  protect  the  Constitution  ?  Is  it  not  by  the 
exercise  of  judicial  power,  just  as  it  is  the  right  and  the  duty 
of  the  President  to  defend  it  by  the  exercise  of  Executive 
power  ?  Judicial  is  and  must  be  coextensive  with  Legislative 
power,  each  acting  in  its  own  sphere, — the  Legislature  to  make 
laws,  the  Courts  to  interpret  and  apply  them.  Fundamental, 
organic,  political  laws,  establishing  a  form  of  Government, 
"whether  written  or  unwritten,  are  the  Constitution  of  a  State; 
they  are  the  birthright  of  a  people,  their  established  manner 
and  rule  of  living  as  a  nation,  and  are  of  so  high  and  import- 
ant a  nature,  that  in  every  system  they  are  either  expressly 
or  impliedly  excepted  out  of  the  ordinary  powers  of  the  Legis- 
lature. The  Legislature  ought  7iot  to  alter  them,  except  for 
grave  and  obvious  reasons,  and  with  the  assent  of  the  people, 
given  either  expressly  by  votes  or  impliedly  by  silence, — by 
acquiescence,  by  the  press,  and  other  official  and  unofficial 
organs.  These  are  the  general  principles  of  all  free  Govern- 
ments. Our  ancestors  intended  to  embody  them  in  the  Con- 
stitution. They  were  stated  with  clearness  and  force  by  Vattel, 
before  the  Constitution  was  written. 

"The  Constitution  of  a  State  ought  to  be  fixed;  and  since 
that  was  first   established  by   the  nation,  which   afterwards 


76  THE    TRIAL     OF    THE    CONSTITUTION. 

trusted  certain  persons  with  the  legislative  power,  the  funda- 
mental laws  are  excepted  from  their,  commission.  .  .  .  Legis- 
lators derive  their  powers  from  the  Constitution.  IIow,  then, 
can  they  destroy  it  without  destroying  the  foundation  of  their 
authority?  By  the  fundamental  laws  of  England,  the  two 
Houses  of  Parliament,  in  concert  with  the  King,  exercise  the 
Legislative  power;  but  if  the  two  Houses  should  resolve  to  sup- 
press themselves,  and  to  invest  the  King  with  the  full  and  ab- 
solute Government,  certainly  the  nation  would  not  suffer  it. 
And  who  can  presume  to  say  they  would  not  have  the  right  to 
oppose  it  ?  But  if  the  Parliament  entered  into  a  debate  on 
making  so  considerable  a  change,  and  the  Avhole  nation  was 
voluntarily  silent  upon  it,  this  would  be  considered  as  an  ap- 
probation of  the  act  of  its  representatives."* 

In  England  there  is  no  legal  bar  to  the  power  of  the  Legis- 
lature. But  in  any  Government,  when  a  change  is  required 
by  necessity  and  demanded  by  public  opinion,  it  will  be  made, 
for  self-preservation  dispenses  with  all  laws  and  forms,  and 
every  Government  is  and  must  be  invested  by  nature  with 
power  sufficient  to  accomplish  the  end  of  Government,  which 
is  the  public  safety.  Every  Government,  also,  has  and  must 
have  sufficient  power  to  satisfy  the  majority  of  the  people,  for 
the  power  of  the  Government  is  the  power  of  the  people.  In 
the  case  supposed,  of  an  infringement  of  the  Constitution  de- 
manded by  necessity,  honestly  made,  and  acquiesced  in  by  the 
people,  what  is  the  duty  of  the  Supreme  Court  ?  We  have 
already  shown  that  practically  it  has  no  power.  Is  it  never- 
theless bound  to  set  itself  in  opposition  to  the  Legislature  and 
the  people  ? 

This  (question  is  answered  by  determining  what,  imder  such 
circumstances,  would  be  the  duty  of  the  Legislature.  Judicial 
power  is,  all  agree,  coextensive  with  Legislative  power.  Ju- 
dicial duty  is  therefore  coextensive  with  Legislative  duty,  for 
duty  is  forever  cou])led  with  power.  Whatever,  therefore,  it 
is  the  duty  of  the  Legislature  to  do,  it  is  the  duty  of  the  Ju- 
diciary to  assist  in  doing.     AVhatever  laws  it  is  the  duty  of  the 

*  Vattel,  ch.  8,  |  34. 


A     WRITTEN     CONSTITUTION.  77 

Legislature  to  pass,  it  is  the  duty  of  tlie  Courts  to  interpret 
and  apply,  according  to  the  -will  of  the  former.  Now,  our 
Constitution  is  new ;  it  has  gone  through  no  perils  to  test  and 
try  its  strength  and  capacity  for  the  work  it  was  intended  to 
perform.  Should  it  happen  that  the  powers  granted  to  it  by 
the  Government  are  insufficient  to  meet  a  dangerous  crisis, 
what  ought  the  Government  to  do  ?  Exercise  the  requisite 
power  and  save  or  try  to  save  the  nation,  or  hold  its  hand 
and  let  the  Constitution  and  the  nation  perish  ?  Wait  until 
the  intricate  machinery  of  the  fifth  article  can  be  put  in  ope- 
ration, whilst  the  voices  of  the  people,  demanding  instant  ac- 
tion, are  thundering  through  the  land,  or  assume  and  wield  at 
once  all  their  power,  reserved  or  other,  to  maintain  its  autho- 
rity and  defend  its  flag  ? 

There  can  be  but  one  answer  to  these  questions,  if  the  Con- 
stitution was  intended  for  the  people,  and  if  the  Government 
is  the  representative  of  the  people  of  1862,  and  not  of  the 
people  of  1787.  The  Government  is  a  unit ;  its  duty  as  a 
whole  is  to  preserve  itself  and  the  nation.  All  the  depart- 
ments ought  to  act  together  for  this  supreme  object.  There 
is  no  such  thing  as  divided  duty  in  a  Government.  If  it  be 
the  duty  of  the  Legislature  and  the  Executive  to  save  the 
country,  it  is  absurd  to  say  that  to  obstruct  their  efforts  is  the 
duty  of  the  Judiciary.  Conflicting  powers  and  duties,  discord 
and  collision  betAveen  the  departments,  what  are  they  but 
anarchy  within,  sure  to  produce  anarchy  without,  fatal  to  the 
Constitution  and  disastrous  to  the  country  ? 

"This  Constitution  and  the  laws  made  in  pursuance  thereof, 
are  the  Supreme  Law  of  the  land."  This  may  be  said  of  the 
Constitution  and  the  laws  of  every  free  Government,  as  the 
extract  from  Vattel,  above  given,  proves.  It  applies  just  as 
well  to  the  English  Constitution  and  laws,  as  to  ours.  As 
before  stated,  it  is  evident,  from  the  context  of  the  clause  in 
which  it  is  found,  that  it  was  meant  to  express  and  enforce  the 
relations  between  the  General  Government  and  the  States,  pe- 
culiar to  our  system,  by  giving  supremacy  to  the  laws  of  that 
Government.  These  words  have  been  construed  to  invest  the 
Supreme  Court  with  authority  to  set  aside  as  invalid,  not  only 


tS  THE     TRIAL     OF     THE    CONSTITUTION. 

the  Constitution  and  laws  of  the  States,  but  Acts  of  Congress, 
Avhic'h  are  inconsistent  with  the  Constitution.  Our  argument 
relates  to  the  latter  doctrine  only,  for  about  the  former  there 
can  be  no  dispute.  Such  is  the  language  of  the  authorities, 
and  as  already  said,  we  bow  to  authority.  It  is  of  great  im- 
portance, however,  at  the  present  moment,  to  discover  what 
these  authorities  really  decide,  and  wdiether  they  cover  the 
question  now  before  the  country ;  whether  it  is  the  right  or 
the  duty  of  the  Court,  in  time  of  war  and  attempted  revo- 
lution, to  interfere  with  the  operations  of  the  Government, 
intended  to  maintain  its  power  and  sanctioned  by  the  majority 
of  the  people. 

This  question  has  never  been  presented  to  the  Court,  for 
the  circumstances  that  have  given  rise  to  it  never  before 
occurred  in  our  history.  There  never  has  been  an  occasion 
when  self  preservation  demanded  that  the  Government  should 
overstep  its  limited  powers.  There  never  has  been  a  time 
when  the  Government  avowedly  and  intentionally  did  exceed 
them  because  they  were  found  too  limited  for  the  emergency. 
There  never  has  been  a  time  when  the  Government  went  be- 
yond the  Constitution,  and  was  met  on  the  frontier  by  an 
almost  universal  burst  of  hearty  approbation  from  the 
people.  The  case  is  a  new  one.  The  authorities  do  not  reach 
it.  The  question  of  law,  therefore,  is  open,  and  must  be  de- 
cided by  the  general  principles  of  our  Constitution,  and  of  all 
Constitutions. 

In  all  the  cases  heretofore  decided,  the  violation  of  the 
Constitution  by  Congress  has  been  unintentional.  They  were, 
therefore,  within  the  legitimate  scope  of  judicial  power.  It  is 
the  province  of  the  Courts  to  expound  and  interpret  the  laws 
passed  by  the  Legislature,  according  to  the  principles  of  legal 
science,  and  according  to  the  principles  of  the  Constitution. 
In  the  absence  of  clear  proof  to  the  contrary,  the  Court  is  to 
presume  that  Congress  does  not  mean  to  violate  the  Constitu- 
tion. The  Judges  are  "learned  in  the  law."  No  such 
learning  is,  either  theoretically  or  practically,  to  be  predicated 
of  Congress.  Therefore,  in  declaring  a  law  unconstitutional 
and  void,  the  Court  carries  into  effect  what  it  is  bound  to  as- 


A    WRITTEN     CONSTITUTION.  79 

sume  to  be  the  intention  of  the  Legislature.  It  merely 
corrects  a  mistake,  which,  it  has  a  right  to  suppose,  the 
Legislature  made  through  ignorance,  and  would  be  willing  to 
have  corrected. 

Such  has  been  heretofore  the  history  of  our  Supreme  Court, 
and  such  the  mutual  confidence  and  respect  existing  between 
the  Legislative  and  Judicial  departments  of  our  Government. 
Where  the  Court  has  spoken.  Congress  has  yielded.  This 
mutual  deference  is  the  duty  of  each.  So  long  as  it  can  be 
maintained,  the  action  of  the  Government  will  be  regular  and 
harmonious,  for  it  is  the  natural  action  of  the  two  branches  of 
power,  each  in  its  appropriate  sphere.  Its  happy  results  have 
been  the  confidence  and  respect  of  the  people,  and  cheerful 
obedience  to  the  decisions  of  the  Court,  until  recent  events 
have  impaired  its  influence.  This  misfortune  has  occurred 
solely  because  the  Court  has  departed,  or  is  supposed  to  have 
departed,  from  its  legitimate  orbit  of  duty  and  power,  and 
entered  the  dangerous  and  forbidden  field  of  partisan  politics. 
No  case  has  yet  occurred  where  the  Legislature  has  exceeded 
intentionally  its  constitutional  powers,  with  honest  motives  and 
with  the  sanction  of  public  opinion.  The  authorities  already 
referred  to  do  not  apply  to  such  a  case,  and  what  the  Court 
may  rightfully  do,  and  ought  to  do,  when  it  does  occur,  is  a 
question  of  constitutional  law  yet  undecided. 

Neither  do  the  elementary  writers,  to  whom  we  are  aciJus- 
tomed  to  look  for  guidance,  afford  us  much  light  on  the  sub- 
ject. The  Federalist,  Chancellor  Kent  and  Judge  Story  refer 
exclusively  to  three  classes  of  cases,  to  which  the  conservative 
and  restraining  power  of  the  Judiciary  is  supposed  to  apply. 
1st.  Unintentional  violations  of  the  Constitution,  which  we 
have  already  considered.  2d.  The  control  of  the  Supreme 
Court  over  the  Courts  of  the  States,  about  which  there  can 
be  no  doubt ;  and  3d.  Criminal  usurpation  of  power  by  the 
Executive  or  Legislature,  or  a  conspiracy  by  both  to  destroy 
the  Constitution  and  overturn  the  Government.  In  such  a 
case,  the  right  and  duty  of  the  Judiciary  is  too  plain  for  argu- 
ment. The  Judges  surely  may  refuse  to  enter  into  a  league 
against  the  Constitution,  or  to  become  the  instruments  or  allies 


80  THE     TRIAL     OF     THE     CONSTITUTION. 

of  revolutionists  and  traitors.  On  the  contrary,  they  may  and 
ought  to  resist  them  with  all  the  influence  of  their  office,  their 
social  rank,  their  talents  and  learning  and  eloquence.  But 
their  resistance  would  be  not  that  of  Judges,  but  of  citizens, 
and  they  would  use  official  weight  and  authority  to  defend  the 
Government,  just  as  the  capitalist  would  use  his  money,  or  the 
people  their  fire-arms,  or  men  of  mark  or  eminence  whatever 
weight  their  position  and  character  gave  them. 

Let  us  imagine  a  case  similar  to  that  mentioned  by  Vattel. 
Suppose  Congress,  gained  by  corruption,  or,  overcome  by 
intimidation,  should  decree  that  a  President,  supported  by  the 
mob  or  an  army,  should  hold  his  office  for  life.  This  would 
be  not  only  a  violation  of  the  Constitution,  but  of  the  common 
rights  of  the  people,  which  every  man  in  his  sphere  would  be 
entitled  to  resist,  and  the  Courts,  as  the  especial  guardians  of 
the  law,  would  be  bound  to  do  so,  more  than  others.  But  let 
us  suppose  that  such  an  event  should  happen  in  the  manner 
also  stated  by  Vattel.  That  the  necessity  for  a  change  in  the 
Executive  department  had  become  obvious  and  had  been  de- 
bated both  in  and  out  of  Congress,  before  the  people  and  by 
the  people.  That  a  Presidential  election,  recurring  at  short 
intervals,  had  been  found  destructive  to  order  and  dangerous 
to  the  stability  of  the  Government.  That  a  deliberate  and 
matured  public  opinion  demanded  the  alteration,  although  the 
exj^eriment  of  making  it  according  to  the  fifch  article  was 
deemed  too  hazardous,  because  it  would  produce  the  very 
dangers  which  the  change  itself  was  intended  to  avoid.  Let 
us  suppose  the  change  made.  That  the  people  acquiesced. 
That  it  worked  well ;  and  that  after  years  of  peaceful  and 
prosperous  establishment,  a  "case"  should  arise,  which  brought 
the  question  of  constitutionality  before  the  Supreme  Court. 
Imagine  a  venerable  Chief  Justice  delivering  such  an  opinion 
as  this  : 

"The  right  of  the  "plaintiff"  to  recover  in  the  present  action 
arises  out  of  an  official  act  of  the  Executive.  We  are  asked 
by  the  counsel  for  the  defendant  to  declare  that  act  null  and 
void,  because  the  law  of  Congress,  by  which  the  official  term 
of  the  President  was  altered  from  one  of  four  years  to  one  for 


A    WRITTEN     CONSTITUTION.  81 

life,  was  unconstitutional.  That  law  was  passed  after  long 
and  anxious  deliberation.  The  most  enlightened  opinion,  the 
sober  and  well-considered  judgment  of  the  people  had  demanded 
a  change,  to  avoid  the  constantly  recurring  perils  of  a  Presi- 
dential election,  by  which,  as  experience  had  fully  proved,  the 
passions  and  strife  of  parties  are  liable  to  become  so  excited 
as  to  endanger  periodically  the  public  peace  and  the  stability 
of  the  Government.  The  alteration  thus  made  in  a  part  of 
the  Constitution  has  proved  eminently  successful.  The  people 
have  been  satisfied,  and  have  prospered  under  the  new  law 
and  under  the  able  ride  of  the  illustrious  man  at  the  head  of 
the  nation.  Ten  years  of  tranquil  success  at  home  and  re- 
spect and  glory  abroad,  have  justified  the  action  of  Congress 
and  the  wishes  of  the  people.  Ten  years  have  elapsed,  and 
no  case  until  the  present  has  called  for  the  judgment  of  the 
Court  on  this  grave  subject.  We  could  have  wished  that  no 
case  had  arisen,  but  we  cannot  shrink  from  our  duty.  This 
Court  can  look  only  to  the  Constitution,  and  to  the  intention 
and  meaning  of  our  ancestors  in  1787,  by  whom  it  was  made. 
It  is  too  clear  for  argument  that  Congress  exceeded  its  power 
by  extending  the  term  of  the  Executive  office.  The  alteration 
was  honestly  made,  no  doubt.  It  has  been  eminently  success- 
ful for  ten  years,  and  the  people  have  been  satisfied.  But 
neither  an  act  of  Congress,  nor  lapse  of  time,  nor  the  wishes 
of  the  people,  unless  expressed  according  to  the  Fifth  Article, 
nor  custom,  nor  prosperity,  nor  success,  can  alter  the  Consti- 
tution, except  in  the  way  appointed  by  itself.  The  Consti- 
tution is  the  supreme  law.  This  Court  is  bound  by  it,  and  we 
are  therefore  constrained  by  the  stern  demands  of  duty  re- 
luctantly to  declare,  that  the  act  of  Congress  in  question  was 
void  and  of  no  effect ;  that  the  acts  of  our  respected,  so-called, 
Chief  Magistrate  are  also  void ;  that  he  has  no  legal  power 
whatever ;  that,  indeed,  we  have  no  President  or  Chief  Magis- 
trate at  all." 

Now  what  would  be  thought  of  such  an  opinion  as  'this 
under  the  supposed  circumstances  ?  Would  it  not  coven  the 
Court  with  contempt?     Would  it  have  any  influence  what- 


82  THE    TRIAL     OF    THE     CONSTITUTION. 

ever  on  the  President,  or  Congress,  or  on  the  people,  unless 
indeed  it  might  stimulate  factious  opposition  to  the  Govern- 
ment ?  Yet  it  would  be  law,  according  to  the  generally  re- 
ceived opinion  that  the  Constitution  is  a  finality,  and  that  the 
Judiciary  is  its  special  guardian,  invested  with  political  power 
to  keep  the  other  departments  Avithin  their  prescribed  limits. 

Such  a  doctrine  must  in  the  end  destroy  the  Judiciary. 
The  people  will  not  bear  a  political  power  which  is  independent 
of  their  control.  If  the  Judiciary  exercises  such  power,  it 
must  become  representative,  which  is  the  nature  of  all  political 
power  under  free  institutions.  A  branch  of  the  Government 
which  can  dictate  to  the  Legislature  is  legislative.  It  ceases 
to  be  a  Judiciary,  the  essence  of  which  is  impartiality  and 
freedom  from  external  influence.  A  branch  of  the  Govern- 
ment which  to-day  represents  the  opinions  of  the  dominant 
party,  and  to-morrow  represents  the  same  opinions  when  that 
party  has  ceased  to  be  dominant,  cannot  long  exist  in  a  de- 
mocracy. The  people  Avill  soon  demand  that  it  too  shall  sub- 
mit to  the  ballot-box.  The  duty  of  the  Judiciary  is  to  carry 
out  and  apply  to  private  rights  the  laws  made  by  the  Legis- 
lature, which  is  the  creature  of  the  ballot-box.  In  this  con- 
sists the  real  impartiality  of  the  Courts,  for  they  are  thus 
indifferent  to  all  parties,  being  indirectly  the  instrument  of 
any  that  may  happen  to  rule.  But  if  the  judges  may  control 
the  Legislature,  they  become  at  once  the  opponents  of  a  suc- 
cessful and  the  organs  of  a  defeated  party.  The  people  will 
say  they  are  no  longer  judges,  but  party  leaders,  and  like 
other  party  leaders,  must  become  the  instruments  of  the 
popular  will. 

The  Courts  have  a  nobler  and  higher  part  to  play  than  this. 
They  ought  to  exert  the  moral  influence  which  springs  from 
character,  from  talents,  from  learning,  and  from  a  dignified 
and  important  station.  In  any  healthy  condition  of  the  Go- 
vernment, their  opinions  must  have  great  weight  Avith  the 
Legislature  and  with  the  people,  so  long  as  they  display  quali- 
ties , which  entitle  them  to  respect,  and  keep  within  their 
legitimate  sphere.  But  they  cannot  depart  from  that  with 
safety.     If  they  are  once  drawn  within  the  maelstrom  of  party 


A    WRITTEN    CONSTITUTION.  83 

politics,  the  days  of  the  Judiciary  arc  numbered  and  the  days 
of  the  Constitution  too. 

But  Tve  are  wandering  from  the  point  under  discussion.  In 
the  case  supposed  above,  or  in  any  case  likely  to  be  presented 
by  the  present  war,  might  not  the  Court  give  some  such 
opinion  as  this  : 

"We  are  asked  to  set  aside  an  act  of  Congress,  on  the 
ground  that  it  is  unconstitutional.  It  is  not  a  case  of  doubt- 
ful construction  from  which  it  can  be  inferred  that  Congress 
were  mistaken  as  to  the  law,  and  therefore,  that  by  correct- 
ing that  mistake,  the  Court  would  be  carrying  out,  what  it 
must  presume  to  have  been,  the  paramount  intention  of  the 
Legislature.  If  Congress  have  exceeded  their  powers  in  this 
instance,  they  have  done  so  deliberately  and  purposely. 
Neither  is  it  a  case  of  corrupt  and  criminal  usurpation  of 
power  to  which  the  Court  might  refuse  to  be  a  party,  and 
which  it  would  be  entitled,  like  every  other  officer  of  Govern- 
ment, to  resist.  It  is  conceded  that  the  prescribed  limits 
have  been  overstepped  by  Congress,  from  honest  motives, 
under  the  pressure  of  urgent  necessity,  to  save  the  nation 
from  great  and  imminent  danger,  and  that  the  course  pursued 
has  received  the  sanction  of  the  great  majority  of  the  people. 
No  such  case  has  heretofore  occurred  in  the  history  of  the 
country.  No  such  case  has  been  presented  to  this  Court.  We 
must,  therefore,  in  considering  it,  be  guided  by  those  funda- 
mental principles  of  Government  upon  which  every  Constitu- 
tion is  founded,  and  which,  therefore,  it  is  fair  to  infer,  guided 
our  ancestors  in  constructing  ours. 

"  That  every  Constitution,  made  by  fallible  human  beings, 
must,  in  time,  require  alteration  to  correct  its  errors  and  to 
meet  the  varying  wants  and  opinions  of  the  people,  is  a  truth 
of  political  science,  or  rather  an  axiom,  which  no  argument  is 
needed  to  demonstrate.  Our  fathers  recognized  it,  and  made 
it  the  basis  of  a  separate  article  in  the  Constitution.  It  is 
therein  provided  that  the  Constitution  may  be  amended  by  the 
people.  That  it  may  be  amended  by  persons  representing 
the  people.  That,  when  amendments  are  made,  they  may  be 
ratified  by  the  consent  and  approbation  of  the  people.     This 


84  THE    TRIAL     OF    THE     CONSTITUTION. 

was  the  general  purpose  intended  to  he  accomplished  by  the 
Fifth  Article. 

"  It  is  a  purpose  which  must  not  be  permitted  to  fail,  for 
when  necessity  requires  an  alteration,  it  will  and  must  be 
made,  either  under  and  by  virtue  of  the  Constitution,  or  over 
its  ruins.  Shall  the  Government  obey  this  commanding  truth 
of  all  politics  ?  Sliall  it  carry  into  effect  the  obvious  and  para- 
mount intention  of  the  makers  of  the  Constitution,  or  shall 
it  disregard  that  truth  and  deny  fulfilment  to  that  intention, 
because  certain  forms  of  procedure,  contrived  to  realize  both, 
are  too  intricate  and  difficult  to  be  followed  in  practice  ? 

"  That  is  not  a  just  rule  for  the  construction  of  any  law.  The 
end  is  more  important  than  the  means,  the  substance  than  the 
form.  If  necessary,  form  and  means  must  be  sacrificed  to 
substance  and  end.  So  ought  it  to  be,  even  if  the  Consti- 
tution expressly  declared  that  it  could  be  altered  only  accord- 
ing to  the  prescribed  forms,  which  it  does  not. 

"  All  that  those  forms  were  intended  to  accomplish  has  been 
accomplished  in  the  case  before  us.  The  Constitution  has 
been  altered.  It  was  altered  by  the  representatives  of  the 
people,  and  because  a  change  was  needed.  The  change  has 
been  ratified  by  the  people.  Shall  we  sacrifice  this  valuable 
substance,  for  the  sake  of  forms  which  cannot  be  observed, 
and  permit  those  forms,  intended  for  a  prudent  restraint,  to 
become  an  insurmountable  bar  to  the  action  of  the  people  ? 

"  Reason,  experience  and  a  just  estimate  of  the  condition  of 
the  country  show  clearly  that  the  process  appointed  b}''  the 
Fifth  Article  for  altering  the  Constitution  cannot  be  relied  on. 
It  is  too  cumbersome  to  meet  a  sudden  emergency,  it  requires 
an  impossible  combination  of  action  and  opinion,  and  its 
operation  would  hazard  the  public  peace  and  the  safety  of  the 
Government.  For  these  reasons  it  is  improbable  that  a  resort 
to  it  will  ever  be  had ;  it  is  certain  that  it  cannot  be  used 
when  it  may  be  most  needed.  We  are  then  reduced  to  this 
alternative:  either  the  Constitution  can  never  be  amended,  or 
the  Fifth  Article  must  be  disregarded.  Shall  we  not  say  of 
it,  therefore,  that  if  intended  to  be  imperative  and  exclusive, 
it  was  a  mistake  ;  that  it  must  become  obsolete  and  expire  by 


A    WRITTEN    CONSTITUTION.  85 

non-nser ;  tliat  it  is  useless ;  that  what  cannot  be  used  has 
practically  no  existence,  and  that  we  must  carry  out  in  some 
other  way  the  intention  of  the  founders,  and  the  natural  law 
of  every  Constitution. 

"  This  can  be  done  only  by  Congress.  It  is  their  duty  to 
maintain  the  authority  of  the  Government,  and  to  provide  for 
the  well-being  and  safety  of  the  nation.  If  for  these  purposes 
it  becomes  necessary  to  alter  or  to  transcend  the  Constitution,  it 
must  be  assumed  that  the  people  intended  4;o  invest  the  Legis- 
lature with  power  to  do  so.  A  Government  without  power  to 
protect  itself  or  the  people,  is  not  a  Government.  It  is  the 
duty  of  Congress  to  take  the  responsibility  of  exerting  all  the 
powers  of  the  people  for  the  sake  of  these  paramount  objects. 
If  the  people  are  satisfied,  no  one  has  a  right  to  complain. 
The  Constitution  belongs  to  them,  not  to  their  ancestors.  If 
the  people  are  dissatisfied,  they  have  an  effectual  remedy  in 
the  ballot-box.  What  it  is  the  duty  of  Congress  to  do,  it  can- 
not be  the  duty  of  this  Court  to  restrain  them  from  doing,, 
even  if  it  had  the  ability,  which  it  has  not. 

"  This  Court  is  invested  by  the  Constitution  with  judicial 
power  only.  It  has  never  exercised  any  other.  To  set  aside 
an  act  of  the  Legislature  would  be,  not  an  exertion  of  Judicial, 
but  of  Legislative  authority.  Our  province  is  to  interpret  the 
laws,  not  to  make  them  or  to  repeal  them. 

"But  for  the  Fifth  Article,  Congress,  like  an  English  Parlia- 
ment, would  be,  in  a  legal  sense,  omnipotent.  The  Fifth  Ar- 
ticle was  intended  to  enforce  what  is  alike  the  duty  of  Parlia- 
ment and  of  Congress, — reverence  for  the  Constitution,  caution 
in  making  alterations,  respect  for  the  wishes  of  the  people, 
ultimate  obedience  to  their  will.  These  conditions  have  all 
been  complied  with  in  the  case  before  us.  Substantially,  the 
Fifth  Article  has  been  obeyed.  Its  forms  only  have  been  dis- 
regarded. Because  they  have  been  found  useless,  they  have 
been  treated,  for  reasons  already  given,  as  having  no  existence. 
Congress,  therefore,  like  an  English  Parliament,  is  omnipo- 
tent." 

To  this  complexion  we  must  come  at  last ;  and  in  view  of 
such  a  logical  as  well  as  practical  necessity,  it  is  well  to  con- 


86  THE     TRIAL     OF     THE     CONSTITUTION. 

siclci-  the  position  of  the  Judiciary  in  the  English  Constitution. 
It  is  Avorthy  of  remark,  that  whilst  Avith  us  political  power  is 
attributed  to  the  Supreme  Court,  the  English  Judges  have  far 
greater  influence  than  ours  over  the  conduct  of  the  Govern- 
ment. The  Lord  Chancellor  is  a  member  of  the  Cabinet,  and 
Speaker  of  the  House  of  Lords.  The  Chief  Justice  of  the 
Queen's  Bench  is  a  member  of  the  Privy  Council,  and,  with 
the  other  Judges,  has  a  scat  in  the  House  of  Lords.  They  do 
not  vote.  They  are  there  to  be  consulted  on  questions  of  law, 
and  constantly  are  consulted.  The  influence,  therefore,  of  the 
Judiciary  is  constant  and  preventive,  yet  it  is  strictly  judicial. 
It  advises  the  Legislature  and  Executive  on  points  of  law,  and 
is  ever  present  to  give  advice.  It  has  no  power.  In  our  sys- 
tem the  Judiciary  cannot  be  consulted,  it  cannot  give  advice. 
It  has  nothing  to  do  with  Congress  or  with  the  President,  who 
cannot  avail  themselves  of  its  knowledge  and  wisdom,  however 
much  they  may  be  needed.  It  sits  apart  in  "  coequal  and  co- 
ordinate" dignity, — truly  a  separate  Department,  inactive  amid 
surrounding  perils  and  difiiculties.  These  it  must  not  lend  its 
aid  to  avoid ;  but  if  it  act  at  all,  can  act  only  after  they  have 
been  encountered.  It  is  a  silent  oracle  which  can  never  be 
consulted  until  it  is  too  late,  and  like  the  stern-lights  of  a  ship 
throws  its  radiance,  not  on  the  breakers  ahead,  but  on  the 
wake.  As  already  said,  it  is  a  matter  of  accident  whether  the 
Courts  can  ever  speak  at  all,  however  important  the  question 
may  be  that  requires  their  interference,  or  they  may  be  en- 
abled to  speak  only  after  the  question  has  been  long  and  peace- 
ably settled ;  for  they  can  gain  a  voice  only  by  the  happening 
of  a  "case."  In  England,  when  a  constitutional  (i[uestion 
arises, — that  is,  a  question  as  to  the  law  and  custom  of  Parlia- 
ment,— it  is  referred  to  the  "Law  Lords."  Parliament  may 
thus  avoid  an  unintentional  violation  of  the  Constitution. 

It  follows  necessai-ily,  from  the  doctrine  that  Parliament  is 
omnipotent,  that  its  laws  cannot  be  annulled  by  the  Courts ; 
for  that,  Blackstone  says,  "Avere  to  set  the  Judicial  power 
above  that  of  the  Legislature,  which  tvoidd  he  subversive  of  all 
government.''*    An  act  of  Parliament  is  the  highest  authority 

*  1  Blackstoiic's  Comiu.,  91. 


A     WRITTEN     CONSTITUTION.  87 

that  the  Kingdom  acknowledges  on  earth.  But  the  Courts 
will  always  endeavor  to  give  a  reasonable  construction  to  a 
statute,  and  will  not  suppose  that  the  Legislature  intended  to 
commit  injustice  or  violate  established  rights.*  Wherever, 
therefore,  the  meaning  of  the  law  can  admit  of  doubt,  it  will 
be  construed  in  favor  of  those  rights.  And  notwithstanding 
the  logical  consequences  of  the  theoretically  absolute  power  of 
Parliament,  the  authority  of  the  Courts  to  declare  void  acts 
against  common  right  and  reason  has  been  too  often  asserted, 
at  various  periods  of  English  history,  to  be  Cjuestioned.  "If 
a  statute,"  said  Lord  Coke,  "be  against  common  right  or  rea- 
son, or  repugnant  or  impossible  to  be  performed,  the  Common 
Laiv  shall  control  it  and  adjudge  it  to  be  void;  but  the  Judges 
will  not  hold  a  statute  to  be  void  unless  it  be  clearly  contrary 
to  natural  equity,  for  they  will  strain  hard  rather  than  hold  a 
statute  to  be  void."f  Other  eminent  judges  have  approved 
this  opinion  ;|  and  there  can  be  no  doubt  that,  should  a  case 
arise  of  a  criminal  usurpation  of  power  or  a  flagrant  violation 
of  the  Constitution  like  that  cited  above  from  Vattel,  mani- 
festly against  the  wishes  of  the  people,  the  Courts  would  re- 
fuse to  sanction  such  an  act,  and  thus  become  the  allies  of 
conspirators  and  traitors  to  their  country. 

It  happens,  therefore,  that  unless  our  Constitution  has  vio- 
lated the  laws  of  nature  by  conferring  political  power  on  the 
Judiciary,  and  by  appointing  weakness  to  control  strength ; 
unless  it  is  to  be  regarded  as  practically  unalterable  under  the 
stress  of  any  dangers  and  necessities,  however  urgent,  and  is 
thus  a  fetter  on  the  free  action  and  wishes  of  the  people  for- 
ever, there  is  no  difference  between  the  functions  and  province 
of  the  English  Courts  and  of  ours.  Both  interpret  the  laws 
passed  by  the  Legislature,  according  to  the  Constitution ; 
both  may  and  ought  to  resist  injustice  and  criminal  designs  on 
the  part  of  the  Legislature ;  and  both,  when  no  such  iniquity 
can  be  imputed  to  the  Legislature,  and  its  meaning  is  clear, 

*  1  Kent's  Comm.,  419. 

f  1  Blackstone's  Comm.,  91. 

X  1  Kent's  Comm.,  420. 


88  THE    TRIAL    OF    THE    CONSTITUTION. 

must  submit  to  its  powei*  and  become  the  instruments  of  its 
will.  The  difference  between  them  is,  that  whilst  our  Judiciary 
is  tied  hand  and  foot,  until  released  by  a  "case,"  and  can 
never  speak  at  all  until  a  law  be  passed,  the  English  judges 
exercise  upon  the  course  of  Government,  a  conservative,  pre- 
ventive influence  that  never  sleeps. 

This  moral  influence  is  the  only  sort  of  poAver  over  Govern- 
ment which  belongs  to  the  Judiciary,  or  is  consistent  with  its 
dignity,  usefulness,  or  existence.  It  is  the  legitimate  SAvay 
of  learning,  of  talents,  of  high  character  and  official  rank. 
Such  ascendency  the  Judges  must  always  possess  in  the  nor- 
mal and  healthy  condition  of  the  Government.  The  opinion 
of  the  Court  ought  to  be  received  with  deference  by  the  Legis- 
lature, whose  duty  it  is  to  preserve  the  Constitution  inviolate, 
whilst  it  can  be  preserved.  The  opinion  of  the  Court  will  be 
respected  by  the  people,  so  long  as  they  are  able  to  appreciate 
the  blessings  of  free  institutions,  and  so  long  as  the  Court 
keeps  within  its  legitimate  sphere.  Such  has  ever  been  our 
experience.  The  judicial  power  has  been  exercised  by  the 
Supreme  Court  of  the  United  States  with  eminent  virtue  and 
distinguished  ability.  Its  labors  have  settled  many  important 
questions  which  necessarily  arose  under  a  new  system,  and  it 
has  built  up  a  code  of  national  jurisprudence,  which  Chancellor 
Kent  justly  described  as  a  "solid  and  magnificent  structure," 
on  the  broad  basis  of  the  Constitution.  It  has  done  this 
through  more  than  half  a  century  of  prosperity.  It  has  never 
passed  through  times  which  try  men's  souls,  and  try  also  the 
virtue  and  strength  of  organic  laws.  It  has  never  had  to  deal 
with  sedition,  privy  conspiracy,  and  rebellion,  in  battle  array 
against  the  authority  of  the  Government.  The  time  has  come 
when  the  true  position  of  the  Judiciary  must  be  determined, 
and  it  will  be  determined,  not  by  the  language  of  the  Consti- 
tution or  the  construction  that  has  been  put  upon  it,  but  by 
natural  laws,  Avhich  every  Constitution  must  obey  or  perish. 


It  is  easy  to  see  that  the  formidable  rebellion  which  now 
disturbs  the  country  cannot  be  quelled  without  the  exercise  of 


A    AV  KITTEN     CONSTITUTION.  89 

powers  doubted  and  denied  by  an  influential  party.  It  is  true, 
indeed,  that  they  are  not  doubtful  according  to  a  liberal  and 
enlarged  construction  of  the  Constitution,  or  according  to  its 
spirit,  and  what  must  have  been  the  intention  of  those  who 
made  it,  or  according  to  the  best  writers  on  the  science  of 
jurisprudence.  That  a  nation  is  under  an  obligation  to  pro- 
tect itself,  and  that  its  government  has  a  right  to  use  all  mea- 
sures necessary  for  the  purpose ;  that  the  public  safety  is  the 
supreme  law,  and  that  necessity  supersedes  all  law,  are  prin- 
ciples of  all  governments,  which  if  limited  in  their  action  by  a 
written  Constitution,  the  limits  imposed  must  be  construed  to 
apply  to  periods  of  peace  and  tranquillity. 

But  this  doctrine  is  denied  by  those  who  assert  that  the 
Government,  being  one  of  enumerated  and  limited  powers,  has 
no  authority  not  expressly  granted  by  the  Constitution  ;  that 
it  cannot  look  outside  of  that  instrument  to  any  source  for 
implied  powers ;  that  more  especially  it  cannot  do  anything 
which  the  Constitution  expressly  forbids ;  that  if  the  nation 
cannot  be  saved  according  to  the  forms  of  the  Constitution,  it 
cannot  be  saved  at  all ;  and  that  it  is  the  right  and  duty  of 
the  Supreme  Court  to  declare  null  and  void  every  act  of  Go- 
vernment which  exceeds  the  prescribed  limits.  The  Constitu- 
tion is  thus  invoked  for  the  protection  of  those  who  are  in 
arms  against  its  authority. 

The  Government  has  thought  fit,  since  the  commencement 
of  the  war,  to  suspend  the  writ  of  Habeas  Corpus,  to  arrest 
persons  suspected  of  treasonable  designs  and  practices,  to 
exercise  a  control  over  the  press.  There  are  plans  before 
Congress,  which  may  be  carried  into  effect,  for  confiscating 
the  property  of  rebels,  even  for  emancipating  the  slaves  of  the 
South,  should  the  exigencies  of  the  war  render  so  extreme  a 
step  expedient.  By  the  party  opposed  to  the  Administration 
all  these  measures  are  denounced  as  unconstitutional.  They 
are  so,  according  to  the  letter  of  the  law.  They  are  so,  if 
the  Constitution  be  construed  to  exclude  those  necessary  prin- 
ciples Avhich  are  the  natural  and  therefore  paramount  laws 
of  all  Governments,  and  essential  to  their  salvation.  Very  ' 
probably  the  Courts   may    also    consider   these    proceedings 


90       THE  TRIAL  OF  THE  CONSTITUTION. 

unconstitutional,  and  may  undertake  to  set  them  aside  as  void. 
If  void,  tliej  are  of  no  binding  autliority  over  the  people. 
The  people  Avould  thus,  in  the  midst  of  civil  war,  be  released 
from  all  obligation  to  obey  the  Government. 

In  the  last  number  of  the  Federalist,  Mr.  Hamilton  declared 
that  "  a  ng-tion  without  a  National  Government  is  an  awful 
spectacle  !"  Such  was  this  nation  under  the  old  Confederacy. 
The  object  of  the  Constitution  was  to  give  it  a  Government. 
But  a  Government  divided  against  itself,  with  its  authority 
legally  resisted  by  one  of  its  own  departments,  which  thus 
becomes  virtually  the  ally  of  rebels,  banded  against  its  exis- 
tence, is  no  Government  at  all,  for  it  has  no  power  to  protect 
itself  or  the  nation. 


Alterations  of  the  Constitution  may  be  either  extensive  and 
sudden,  or  minute  and  gradual.  The  former  involve  changes 
of  the  form  and  character  of  the  Government,  and  are  not 
likely  to  be  made  in  ours,  founded,  as  it  is,  on  correct  principles, 
and  well  suited  to  the  genius  and  character  of  the  people. 
Great  changes,  such,  for  example,  as  that  of  a  republic  into  a 
monarchy,  if  they  ever  occur,  will  be  brought  about  by  a 
revolution,  unless  that  can  be  averted  by  the  machinery  of  the 
Fifth  Article.  But  there  are  other  alterations,  the  result  of 
time  and  experience,  revealing  small  defects,  or  made  under 
the  influence  of  transient  causes,  and  which  thus  become 
established  as  precedents.  It  is  highly  important  that  the 
Constitution  may  be  capable  of  being  thus  gently  and  imper- 
ceptibly moulded  to  suit  the  wants  of  the  people,  and  that 
power  to  meet  every  emergency  as  it  arises  may  be  imparted 
to  the  Government.  Is  the  Constitution  elastic  enough  for 
such  a  purpose,  or  is  it  a  rigid  chain  Avhich  must  be  broken 
because  it  cannot  be  stretched  ?  Does  the  Constitution  con- 
tain no  clauses,  from  which  it  may  be  inferred,  that,  although 
the  Fifth  Article  was  intended  to  be  used,  if  possible,  for  im- 
portant and  organic  amendments,  yet  that  others  of  a  less 
serious  character  may  be  made  by  the  Government  itself,  as 
experience  shows  them  to  be  needed  ? 


A    WRITTEN     CONSTITUTION.  91 

Alterations  of  this  nature  have  ah'eady  been  made.  They 
have  been  accepted  by  the  people,  and  from  the  natural 
tendency  of  a  Constitution  to  become  custom,  are  now 
established  as  law.  The  Constitution  provides  that  the  Presi- 
dent shall  be  chosen  by  electors,  elected  by  the  people.  The 
object  Avas  to  avoid  a  direct  vote  of  the  people.  This  object 
was  immediately  defeated  by  the  simple  expedient  of  choosing 
electors  pledged  to  support  a  particular  candidate.  The  pre- 
scribed form  has  been  observed,  but  it  has  been  made  to  serve 
a  purpose,  the  very  opposite  of  that  for  which  it  was  intended. 
The  Constitution  gives  to  the  President  the  power  to  nomi- 
nate, and,  by  and  with  the  advice  and_consent  of  the  Senate, 
appoint  all  officers  of  the  United  States.  It  was  intended,  as 
appears  from  the  contemporary  exposition  in  the  Federalist, 
that  he  should  also  remove  all  officers,  by  and  with  the  advice 
and  consent  of  the  Senate.*  Nevertheless,  it  was  imme- 
diately determined  by  the  Legislature,  that  the  President 
should  have  the  sole  and  independent  power  of  removal. 
This  construction  had  the  effect  of  defeating  the  second  clause 
of  Section  6,  Article  1,  which  declares  that  "  no  member  of 
Congress  shall,  during  the  time  for  which  he  was  elected,  be 
appointed  to  any  civil  office  under  the  authority  of  the  United 
States,  which  shall  have  been  created,  or  the  emoluments 
thereof  shall  have  been  increased  during  such  time ;  and  no 
person  holding  any  office  under  the  United  States,  shall  be  a 
member  of  either  House  during  his  continuance  in  office." 
Offices  created,  or  the  emoluments  of  which  are  increased 
during  the  term,  are  necessarily  few  in  number.  So  also  are 
those  becoming  vacant  by  death  or  resignation.  But  any 
number  of  vacancies  may  be  created  by  removal,  and  thus 
Congress  may  be  subjected  to  the  whole  force  of  Executive 
patronage.  No  power  to  acquire  foreign  territory  is  ex- 
pressly granted  to  the  Government  by  the  Constitution,  yet, 
in  1803,  Louisiana  was  purchased,  and  a  tract  of  country 
added  to  the  nation,  larger  than  the  whole  when  the  Constitu- 
tion was  made. 

*  Federalist,  No.  77. 


92  THE    TRIAL    OF    THE    CONSTITUTION. 

These  were  all-important  measures.  They  were  all  de- 
partures from  the  meaning  of  the  Constitution,  and  from  the 
intention  of  its  founders.  They  have  given  shape,  direction 
and  character  to  the  Government,  and  will  control  its  history. 
Who  can  measure  the  influence  which  has  been,  and  will  be, 
exerted  on  the  destiny  of  the  nation,  by  the  quadrennial 
election,  directly  by  the  people,  of  a  President  who  Aviclds  the 
enormous  power  of  Executive  patronage  as  now  exerted? 
Compared  with  the  Executive  department  intended  by  the 
Constitution,  is  not  the  office,  now,  in  everything  but  the 
name,  an  elective  monarchy  ?  The  precedent  set  by  the 
purchase  of  Louisiana,  was  followed  by  that  of  Florida  ;  that 
by  annexation  of  Texas,  which  led  to  the  Mexican  Avar,  and 
the  acquisition  of  ISTew  Mexico  and  California.  With  Louisi- 
ana we  acquired  Kansas,  and  with  Kansas,  the  germ  of  the 
present  rebellion,  which  threatens  to  destroy  the  Union. 

Yet,  all  these  momentous  acts  were  the  work  of  the  people, 
or  of  Congress  with  the  consent  and  approbation  of  the 
people,  given  not  according  to  the  Fifth  Article.  What  has 
been  done,  may  be  done  again,  and  may  be  done  legally,  for 
in  all  law,  constitutional  or  other,  precedent  is  authority. 


The  powers  of  Government  must  be  coextensive  with  its 
objects,  and  these  are  so  numerous  and  so  much  the  result 
of  causes  which  cannot  be  foreseen,  that  a  Constitution  con- 
ferring expressly  enumerated  powers  only,  is  an  impossibility. 
To  provide  for  the  future  would  require  a  voluminous  treatise, 
and  it  would  be  incomplete,  unless  new  volumes  Avere  con- 
stantly added.  General  powers  only  can  be  granted,  general 
limitations  only  imposed,  and  power  must  be  given,  expressly 
or  impliedly,  to  meet  those  emergencies  that  time  only  can 
disclose.  By  our  Constitution,  this  has  been  done  expressly. 
In  Section  8,  Art.  1,  certain  enumerated  powers  are  conferred 
upon  Congress  ;  and  the  list  closes  by  investing  them  with 
authority  "  to  make  all  laAvs  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers,  and 
all  other  poAvers  vested  by  this  Constitution  in  the  Govern- 


A    WRITTEN     CONSTITUTION.  93 

ment  of  the  United  States,  or  in  any  department  or  officer 
thereof." 

i!Tow,  the  powers  vested  in  the  Government  are  Legislative, 
Executive  and  Judicial,  each  acting  in  its  appropriate  sphere. 
The  accomplishment  of  the  purpose  for  which  the  Constitution 
was  made,  is  the  legitimate  "  carrying  into  execution  "  of  those 
powers.  That  purpose,  the  Constitution  itself  declares,  Avas 
"to  form  a  more  perfect  Union,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common  defence,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity."  Congress  has  power,  therefore,  to 
pass  all  laws  "necessary  and  proper,"  that  is  to  say,  ex- 
pedient and  conducive  to  the  attainment  of  these  objects. 

These  principles  are  sustained  by  the  best  authorities. 
The  Federalist  (No.  33),  in  reference  to  the  clause  in  the 
Constitution  quoted  above,  says :  "  But  it  may  be  asked, 
who  is  to  judge  of  the  necessity  and  propriety  of  laws  passed 
for  executing  the  powers  of  the  Union  ?  I  answer,  first,  that 
this  question  arises  as  well  and  as  fully  upon  the  simple  grant 
of  those  powers  as  upon  the  declaratory  clause ;  and  I  answer 
in  the  second  place,  that  the  National  Government,  like  every 
other,  must  judge  in  the  first  instance  of  the  proper  exercise  of 
its  powers,  and  its  constituents  in  the  last.  If  the  Federal 
Government  should  overpass  the  just  bound  of  its  authority, 
and  make  a  tyrannical  use  of  its  powers,  the  people,  whose 
creature  it  is,  must  appeal  to  the  standard  they  have  formed, 
and  take  such  measures  to  redress  the  injury  done  to  the  Con- 
stitution as  the  exigency  may  suggest  and  prudence  justify." 

In  this  it  is  implied  that  should  the  Government  overpass 
the  bounds  of  its  authority,  with  honest  intentions  and  with 
the  consent  and  approbation  of  the  people,  its  conduct  would 
be  thus  ratified  by  the  only  power  entitled  to  call  it  in  ques- 
tion. Thus  sanctioned,  the  act  of  the  Government  becomes 
precedent,  becomes  law.  And  what  is  that  law  ?  Simply 
this,  in  Hamilton's  own  words :  "•  The  Government  must 
judge,  in  the  first  instance,  of  the  proper  exercise  of  its  powers, 
and  its  constituents  of  the  last."  This  is  the  law  of  England. 
In  No.  34,  Mr.  Hamilton,  discussing  the  same  clause,  speaks 


94  THE    TRIAL    OF    THE    CONSTITUTION. 

thus.  "  In  pursuing  tlie  present  inquiry,  we  must  bear  in 
mind  that  we  are  not  to  confine  our  view  to  the  present  period, 
but  to  look  forward  to  remote  futurity.  Constitutions  of  civil 
government  are  not  to  be  framed  upon  a  calculation  of  existing 
exigencies,  but  upon  a  combination  of  these  with  the  probable 
exigencies  of  ages  according  to  the  natural  and  tried  course  of 
human  affairs.  Nothing,  therefore,  can  be  more  fallacious 
than  to  infer  the  extent  of  any  power  proper  to  be  lodged  in 
the  National  Government,  from  an  estimate  of  its  immediate 
necessities.  There  ought  to  be  a  capacity  to  provide  for  future 
contingencies  as  they  may  happen ;  and  as  these  are  illimitable 
in  their  nature,  it  is  impossible  safely  to  limit  that  capacity." 
Evidently  this  great  statesman,  who  helped  to  make  the  Con- 
stitution, did  not  consider  it  a  finality,  to  be  altered  only 
according  to  the  forms  of  the  Fifth  Article.  Clearly,  in  his 
opinion,  the  clause  under  discussion,  granted  to  Congress, 
where  those  forms  cannot  be  observed,  sovereign  powers  to  do 
whatever  circumstances  may  render  necessary,  subject  only  to 
the  subsequent  assent  of  the  people.  The  opinion  he  expressed 
in  the  same  work  already  quoted,  in  reference  to  the  power  of 
the  Supreme  Court,  must  be  regarded  as  modified  and  limited 
by  these  principles. 

By  the  Articles  of  the  old  Confederation,  the  Government 
was  prohibited  the  exercise  of  any  powers  not  expressly  granted. 
In  the  Tenth  Article  of  the  Amendments  to  the  Constitution, 
the  word  expressly  is  omitted.  By  this  Article,  all  powers 
not  delegated  to  the  Government  are  reserved  to  the  people, 
and  coupled  with  the  clause  granting  general  powers,  already 
quoted,  the  best  writers  agree  that  a  very  large  measure  of 
implied  power  is  conferred.  All  branches  of  the  Government, 
the  Judiciary  included,  have  shown  a  disposition  to  increase 
rather  than  diminish  this  power  by  a  liberal  construction  of 
the  Constitution.* 

A  great  mass  of  incidental  and  resulting  authority  has  been 
exercised  by  the  Government,  which  has  been  sanctioned  by 
the  Courts  and  by  the  people.     A  national  bank,  a  protective 

*  Story  on  the  Coustitution,  ch.  5  and  24 ;   1  Kent's  Comm.,  236-248. 


A    AVRITTEN     CONSTITUTION.  95 

tariff,  the  right  to  make  internal  improvements,  to  acquire 
foreign  territory,  to  govern  it  when  acquired,  to  lay  an  em- 
bargo on  commerce,  to  pass  alien  and  sedition  laws,  and  other 
acts  of  government,  were  all  denounced  as  the  exercise  of 
authority  not  expressly  granted,  and  have  all  passed  into  the 
domain  of  implied  power,  so  far  as  anything  can  pass  out  of 
doubt  into  certainty,  under  our  Constitution,-  a  thing  impossi- 
ble, according  to  the  construction  given  to  it  by  some,  who 
have  no  small  influence  over  its  fate. 

The  result  of  these  examples  and  authorities  is,  that  the 
Government  may  exercise  not  only  power  expressly  granted, 
but  all  powers  not  expressly  prohibited  by  the  Constitution. 
But  the  arguments  by  Avhich  implied  power  is  attributed  to 
Government,  sustain  also  the  position  that  it  must  have 
sovereign  and  absolute  power  even  over  the  Constitution. 
This  arises,  to  quote  the  language  of  Mr.  Madison,  in  the 
Federalist  (No.  43),  from  "  the  absolute  necessity  of  the  case; 
from  the  great  principle  of  self-preservation  ;  the  transcendent 
law  of  nature  and  of  nature's  God,  which  declares  that  the 
safety  and  happiness  of  society  are  the  objects  at  which  all 
political  institutions  aim,  and  to  which  all  such  institutions 
must  be  sacrificed. 

Whenever  these  great  objects  are  in  danger,  the  Govern- 
ment may,  and  unless  false  to  its  trust,  always  Avill  overstep 
the  limits  of  the  Constitution  to  preserve  them.  What  a 
Government  can  do,  and  ought  to  do,  is  the  law  of  that 
Government  ;  the  supreme  law,  to  which  its  Constitution  must 
be  made  to  conform.  Moreover,  whatever  the  Government 
thus  does,  if  afterwards  ratified  by  the  sentiments  and  votes  of 
the  people,  is,  for  that  reason  also,  the  law,  whether  the  thing 
done  was  absolutely  essential  to  the  purpose  or  not,  for  the 
question  of  necessity  is  one  not  of  law,  but  of  fact. 


The  people  of  this  country  have  prospered  under  the  Con- 
stitution. They  have  enjoyed  the  blessings  of  security,  order, 
and  liberty.  They  have  advanced  rapidly  in  wealth  and  in  all 
the  arts  and  culture  of  civilization.     They,  therefore,  justly 


96  THE    TRIAL    OF    THE    CONSTITUTION. 

regard  the  Constitution  with  reverence  and  affection.  It  is 
impossible  to  over-estimate  its  value,  or  to  encourage  too 
earnestly  those  sentiments  which  may  preserve  it  from  the 
rude  touch  of  experiment  or  rash  innovation.  But,  that  it 
may  endure,  it  must  be  capable  of  alteration,  when  an  altera- 
tion is  needed,  otlicrwise  it  Avill  be  destroyed ;  for  a  Constitu- 
tion that  cannot  be  changed  for  the  people,  and  by  the  people, 
must,  the  moment  it  is  felt  as  an  obstruction,  be  swept  aAvay 
by  the  force  of  opinion,  and  the  march  of  events.  Should  it 
yield  to  these,  its  original  plan  and  proportions  may  be  pre- 
served, though  it  may  be  gradually  modified  in  parts  and  sub- 
ordinate details.  It  may  be  thus  modified,  if  our  reasoning  be 
correct,  without  violating  its  spirit,  its  essential  character,  or 
the  intention  of  its  founders. 

In  a  war  like  the  present,  when  all  the  elements  of  discord 
are  let  loose,  when  no  man  can  foresee  from  what  source 
dangers  may  arise,  or  what  now  dormant  forces  of  passion 
may  be  roused,  the  power  of  Government  must  be  maintained, 
or  every  interest  of  society  may  perish  in  a  raging  sea  of  vio- 
lence and  anarchy.  An  excited  people  in  the  midst  of  civil 
war,  without  a  Government, — who  can  describe  the  manifold 
horrors  and  miseries  of  such  a  condition  ?  Those  who  are  noAv 
assailing  the  Administration  for  violating  the  Constitution, 
and  endeavoring  to  weaken  its  authority,  would  do  well  to 
think  of  this.  If  they  can  succeed  in  their  schemes,  the  Con- 
stitution for  which  -  they  profess  so  much  respect,  will  soon 
cease  to  exist,  and  the  Avar  they  deprecate,  will  speedily  be 
brought  with  added  terrors  to  their  own  homes. 

The  Constitution  belongs  to  the  people, — to  the  people  of 
1862,  not  to  those  of  1787.  It  must  and  will  be  modified  to 
suit  the  wishes  of  the  former,  by  their  representatives  in  Con- 
gress, just  as  the  English  Constitution  has  been  modified  by 
Parliament,  or  it  will  be  destroyed.  The  great  danger  to  our 
Constitution  arises  not  from  its  pliability,  but  from  its  rigid 
resistance  to  change.  It  may  be  thought,  by  some,  that  it 
would  run  greater  risks  if  committed  to  the  caprice  of  the 
multitude,  or  to  such  a  Legislature  as  the  multitude  elects. 
But  these  perils   must  be  encountered  in  a  republic.     If  the 


A    WRITTEN    CONSTITUTION.  97 

people  cannot  preserve  the  Constitution,  it  must  perish,  for  it 
cannot  be  preserved  by  the  Judiciary.  The  only  reliance  in  a 
popular  Government  is  on  the  intelligence  of  the  people,  which 
in  our  country  is  so  great  as  to  inspire  just  confidence  in  the 
future. 

We  have  not,  indeed,  an  established  church,  an  hereditary 
throne  and  a  landed  aristocracy,  elements  which  have  given 
so  much  strength  and  stability  to  the  English  Government. 
But  even  in  England,  those  resisting  forces  have  exerted  far 
more  influence  in  the  past  than  they  do  at  present.  They 
were  powerful  when  Avealth  consisted  chiefly  of  land,  when 
knowledge  was  confined  to  the  clergy,  and  Avhen  Government 
was  alternately  threatened  by  the  violence  of  a  rude  nobility, 
and  by  the  rage  of  the  ignorant  masses.  But  the  tendency  of 
civilization  is  to  produce  equality,  both  of  fortune  and  intelli- 
gence. Commerce  and  manufactures  in  England  now  guard 
the  Constitution  as  eifectually  as  the  land  did  before,  and  en- 
lightened public  opinion,  wielding  the  sceptre  of  a  free  press, 
wears  a  crown  more  mighty  than  a  king's,  and  overshadows, 
whilst  it  protects,  a  nominal  throne. 

We  have  land  enough  in  our  country  to  insure  controlling 
power  to  its  owners,  and  the  conservative  influences  of  land  do 
not  depend  on  the  rank  or  title  of  those  who  possess  it.  Our 
rapid  prosperity  has,  in  the  Northern  States,  accumulated 
a  vast  capital  in  trade,  manufactures,  and  the  mechanic  arts, 
in  banks,  railroads,  and  canals.  We  have  great  cities  and 
flourishing  towns.  Property  exists,  not  only  in  masses  owned 
by  individuals  and  corporations,  but  it  is  spread  abroad  through- 
out society,  and  with  it  also  is  spread  the  love  of  material 
prosperity,  of  industry  and  of  business,  to  an  extent  unex- 
ampled in  the  world  or  the  world's  history.  All  these  demand 
order  and  stability,  and  exert  a  powerful  influence  in  their 
favor.  Knowledge  is  difiused  among  the  people  even  more 
widely  than  property.  It  has  a  free  press  for  its  organ  and 
instrument.  Opinion  rules  here  as  it  does  in  England.  Opinion 
can  change  the  English  Constitution,  can  also  secure  it  from 
change,  and  therefore  it  is  safe.    On  these  conditions  only  can 

7 


98  THE    TRIAL     OF    THE    CONSTITUTION. 

our  Constitution  be  safe,  for  opinion,  if  it  cannot  change  it, 
will  destroy  it. 


It  has  become  a  serious  question  for  the  American  people, 
whether  they  have  a  Government  or  not,  a  question  which  this 
war  must  decide.  The  essence  of  Government  is  that  it  com- 
mand obedience.  But  with  a  Constitution  granting  limited 
powers,  which  each  department,  each  State,  each  section,  each 
party  may  construe  as  it  pleases,  which  the  Judiciary,  for- 
getting its  nature,  declares  to  be  independent  of  its  own  pre- 
vious decisions,  so  that  all  doubtful  questions  remain  forever 
open,  how  is  it  possible  that  the  Government  can  have  adequate 
authority  ?  Out  of  these  false  doctrines  grew  the  alleged  right 
of  nullification  and  of  secession ;  the  first  which  brought  the 
country  to  the  verge  of  civil  war,  and  the  second  to  the  present 
contest,  whose  issues  are  veiled  by  the  curtain  of  the  future. 
Because  of  these  doctrines  also,  and  of  the  incompetence  of 
those  trusted  with  power,  the  Government,  long  before  the 
war,  had  ceased  to  inspire  respect  or  confidence.  Authority 
had  departed  from  it,  and  it  fell  so  low,  that  a  bold  faction,  in- 
significant at  first,  dared  to  insult,  defy,  threaten,  and  finally 
to  attack  it  in  armed  rebellion.  Are  these  causes  still  to  con- 
tinue their  baneful  action  ?  The  time  has  come  when  the 
question  must  be  settled.  Unless  the  Government  can  be 
armed  with  sufficient  power,  legal  as  Avell  as  physical,  to  meet 
all  the  exigencies  of  this  crisis,  neither  the  Constitution  nor 
the  nation  can  be  preserved.  A  nation  without  a  government 
is,  indeed,  as  Mr.  Hamilton  said,  an  awful  spectacle,  even  in 
time  of  peace  ;  but  how  much  more  awful  in  time  of  war  !  We 
are  walking  over  deep  waters  on  ice  that  is  cracking  under 
our  feet. 


UNION.  99 


CHAPTER  11. 

UNION. 

As  already  said  in  the  preceding  chapter,  our  Constitution 
is  partly  new  and  partly  old.  When  they  set  about  the  task 
of  constructing  a  Government,  our  fathers  necessarily  had  in 
their  minds  the  Government  under  which  they  had  lived.  So 
much  of  this  as  suited  their  circumstances  they  took,  and  could 
not  avoid  taking ;  and  in  whatever  they  were  obliged  to  invent 
they  followed  the  existing  model  as  closely  as  they  could,  both 
from  choice  and  necessity.  In  every  question,  therefore,  that 
arises  under  the  Constitution,  we  should  ask,  first,  What  was 
the  English  law,  what  the  Colonial  law  ?  and  secondly,  What 
changes  were  imposed  by  new  circumstances  ?  We  shall  thus, 
in  doubtful  questions,  ascertain  what  must  have  been  the  mean- 
ing and  intention  of  the  founders,  and  perhaps  also  find  in  the 
English  law,  for  our  guide,  principles  that  have  stood  the  test 
of  time. 

It  might  be  thought,  from  a  superficial  view  of  the  subject, 
that  if  any  part  of  our  Constitution  was  new,  it  is  that  which 
provides  for  the  Union,  and  establishes  its  complex  relations 
between  the  State  and  General  Governments,  creating  at  the 
same  time  a  Confederacy  and  a  Nation.  Yet  for  this  also  a 
pattern  existed  in  the  "  United  Kingdom,"  and  our  ancestors 
adopted  the  principles  by  which  England,  Scotland  and  Ire- 
land became  united.  The  same  pattern  existed  also  in  the  re- 
lation of  the  Colonies  to  the  Mother  Country ;  and  when  that 
relation  was  severed,  first  the  old  Confederacy,  and  when  that 
failed  the  present  Constitution,  was  contrived  to  take  the  place 
of  the  Mother  Country.       ^ 

The  image,  moreover,  of  the  Union  and  the  States, — that  is 
to  say  of  central  and  local  power, — was  presented  by  the  con- 


100  THE    TRIAL     OF    THE     CONSTITUTION. 

struction  of  English  society  and  its  division  into  counties  ma- 
naging their  own  affairs,  subject  to  the  power  of  King  or  Par- 
liament managing  National  affairs, — institutions  derived  from 
Alfred  and  our  Saxon  ancestors,  and  brought  by  them,  with 
their  blood  and  free  spirit,  from  German  forests.  Lord  Camp- 
bell, in  his  Lives  of  the  Chief  Justices  (Vol.  I,  p.  33),  makes 
some  casual  remarks,  which  illustrate  the  philosophy  both  of 
the  English  Constitution  and  of  ours  in  relation  to  this  sub- 
ject. Speaking  of  the  office  of  Chief  Justiciar  as  introduced 
by  William  the  Conqueror  from  Normandy,  he  says:  "The 
functions  of  such  an  officer  would  have  ill-accorded  with  the 
notions  of  our  Anglo-Saxon  ancestors,  who  had  a  great  anti- 
pathy to  centralization,  and  prided  themselves  upon  enjoying 
the  rights  and  advantages  of  self-government.  The  shires 
being  parcelled  into  hundreds  and  other  subdivisions,  each  of 
these  had  courts,  in  which  suits  both  civil  and  criminal  might 
be  commenced."  And  again,  in  a  note  on  next  page,  "It  is 
curious  to  observe,  that  notwithstanding  the  sweeping  change 
of  laws  and  institutions  introduced  at  the  Conquest,  the  cha- 
racteristic difference  between  Frenchmen  and  Englishmen  in 
the  management  of  local  affairs  still  exists,  after  the  lapse  of 
so  many  centuries ;  and  that  whilst  with  us  parish  vestries, 
town  councils,  and  county  sessions,  are  the  organs  of  the  petty 
Confederated  Republics  into  which  England  is  parcelled  out, 
in  France,  whether  the  form  of  the  Government  be  nominally 
monarchical  or  republican,  no  one  can  alter  the  direction  of  a 
road,  build  a  bridge,  or  open  a  mine,  without  the  authority  of 
the  Ministre  des  Ponts  et  Chaussees.  In  Ireland,  there  being 
much  more  Celtic  than  Anglo-Saxon  blood,  no  self-reliance  is 
felt,  and  a  disposition  prevails  to  throw^  everything  on  the  Go- 
vernment." 

Such  are  the  influences  of  race ;  and  to  these  it  is  due  that 
Norman  and  Saxon  have  worked  together  in  harmony  to  build 
up  a  Constitution  that  suits  them  both ;  for  though  the  former 
came  from  France  to  England,  both  are  of  the  same  Teutonic 
stock  which  conquered  the  Celt  in  France  as  well  as  in  Eng- 
land, Scotland,  and  Ireland.  Norman  and  Saxon  assimilated 
and  became  one  people;  but  they  have  not  assimilated  with  the 


UNION.  101 

Celt,  either  in  France,  in  Scotland,  or  in  Ireland,  and  never 
will. 

Seeing,  therefore,  that  this  tendency  to  unity  and  diversity, 
to  central  and  local  power,  is  a  quality  of  race,  manifested 
from  the  earliest  period  in  English  history,  it  could  not  fail  to 
show  itself  in  the  Constitution  of  our  Government,  which  else 
would  not  have  suited  the  people  for  whom  it  was  intended. 
Our  ancestors,  in  obeying  a  natural  impulse,  had  only  to  walk 
in  well-worn  paths  open  before  them.  Let  us  inquire  what 
those  paths  were,  and  whether  our  fathers  kept  to  them  or  de- 
parted from  them. 


The  British  dominions  consist,  first,  of  the  kingdom,  con- 
taining England,  Wales,  Scotland,  Ireland,  and  some  adjacent 
islands,  and,  secondly,  of  the  colonies  and  dependencies,  such 
as  Canada,  the  West  Indies,  India,  &c.  The  first  are  com- 
bined into  one  Government,  by  a  legislative  union,  each  retain- 
ing its  local  laws,  customs  and  jurisdiction,  each  subject  to 
the  general  authority,  and  each  possessing  a  share  of  influence 
over  that  authority.  The  position  of  the  colonies,  or  rather  of 
the  English  race  in  those  colonies,  differs  from  the  former  chiefly 
in  this,  that  their  union  with  the  parent  country  is  not  legisla- 
tive but  dependent.  They  have  their  local  laws  and  local 
government,  but  they  are  subject  to  the  power  of  the  English 
Government,  and  yet  have  no  voice  in  its  councils,  or  control 
over  its  action.  In  both,  the  ruling  idea,  a  combination  of 
central  with  local  power,  is  completely  realized. 

The  countries  which  compose  the  United  Kingdom,  Eng- 
land, Scotland  and  Ireland,  were  conquered  by,  the  boM  and 
energetic  Saxons,  a  branch  of  the  great  Scandinavian,  Teu- 
tonic, Indo-Germanic  or  Arian  race,  which  is  supposed,  by 
some  writers,  to  have  founded  all  the  great  empires  that  have 
existed  in  the  world,  to  have  been  the  authors  of  civilization 
and  free  government,  and  to  be  now  the  only  portion  of  the 
human  family  capable    of  enjoying  or  maintaining  either.* 

*  Gobineau  sur  I'lneoralite  des  Races  humain. 


102  THE    TRIAL    OF    THE     CONSTITUTION. 

Without  entering  upon  this  question,  it  is  enough  for  our 
present  purpose  that  the  British  Ishmds  Avere  conquered 
by  the  Saxons,  who  drove  the  aboriginal  inhabitants,  the 
Celts,  into  the  barren  and  wild  land,  keeping  the  fertile 
for  themselves ;  into  the  bogs  of  Ireland,  the  Highlands  of 
Scotland,  the  mountains  of  Wales,  much  as  we  have  driven 
the  Indians  into  the  wilderness,  and  ruled  over  them  with 
despotic  power,  as  we  govern  the  Indians,  with  small  regard 
for  their  interests  or  rights. 

After  a  certain  time,  another  branch  of  this  same  Germanic 
race,  the  Normans,  of  a  higher  and  more  adventurous  spii'it  than 
the  Saxons,  invaded  and  conquered  England.  But  the  con- 
quest was  of  a  very  different  character  from  that  made  by  the 
Saxon  of  the  Celt,  as  was  the  nature  of  the  government  im- 
posed by  the  Norman  on  the  conquered  country.  The  Nor- 
man encountered  the  resistance  of  a  people  as  brave  and 
intelligent  as  himself,  who  loved  liberty  and  power  as  he  did, 
who  had  the  same  innate  sense  of  justice,  order  and  right,  the 
same  force  of  mind  and  character.  The  two  races  were  of 
kindred  blood,  which  soon  flowed  in  the  same  veins,  and  their 
instincts  led  them  to  adopt  the  same  laws  and  customs.  After 
some  generations,  the  laws,  the  customs,  and  the  language  of 
the  conquered  race  gained  the  ascendency,  and,  in  time,  all 
traces  of  a  different  origin,  or  of  the  conquest,  were  obliter- 
ated.* The  trial  by  jury  came  from  the  Saxon  and  Magna 
Charta  was  obtained  by  Norman  barons  from  a  Norman 
king. 

The  natural  difference  and  inequality  of  race  is  the  guiding 
clue  to  much  of  English  history.  It  explains  the  combination 
of  local  and  Qentral  power  exhibited  in  its  government,  also 
its  system  of  representation,  the  freedom  of  its  laws,  its  religi- 
ous wars,  its  treatment  of  conquered  countries,  the  condition 
of  its  colonies,  and  the  relations  that  have  existed,  and  do 
exist,  between  the  component  parts  of  the  Empire. 

This  history  establishes  one  general  truth,  pertinent  to  our 

*  These  points  are  admirably  developed  in  Thierry's  History  of  the  Norman 
Conquest,  and  Scott's  Ivanhoe,  which  suggested  that  work. 


UNION.  103 

topic.  Wherever  the  English  go  to  found  a  Government, 
that  Government  is  a  copy  of  the  one  they  left  at  home. 
They  take  with  them  all  the  rights  and  privileges  of  English- 
men, and  all  English  laws  applicable  to  their  condition.  They 
do  not  impart  the  benefit  of  those  laws  or  grant  those  rights  and 
privileges  to  people  of  an  inferior  race,  who  are  unable  to  under- 
stand, appreciate  or  enjoy  them.  They  took  their  laws  and 
rights  to  America,  but  did  not  give  them  to  the  Aborigines.  They 
took  them  to  Hindostan,  but  did  not  give  them  to  the  Indians. 
They  took  them  to  America  and  the  West  Indies,  but  did  not 
give  them  to  the  negroes.  They  took  them  to  Scotland,  but 
did  not  give  them  to  the  Highlanders.  They  took  them  to 
Ireland,  but  did  not  give  them  to  the  Celts.  They  kept 
liberty  and  law,  the  trial  by  jury,  and  the  Habeas  Corpus,  and 
the  right  of  suffrage,  and,  too  often,  justice  and  humanity,  for 
themselves,  and  gave  to  the  conquered  the  position  of  a 
separate  and  dependent  people. 


The  ruling  principle  of  the  English  Government,  central 
combined  with  local  authority,  springs  from  the  love  of 
liberty  and  love  of  poAver  inherent  in  the  Saxon  race. 
Central  authority  controlling  local  interests  would  interfere 
with  self-government.  But  central  authority  is  necessary  in 
a  great  and  powerful  nation.  Unless  this  authority,  how- 
ever, be  also  subjected  to  the  will  of  the  people,  it  would  be 
dangerous  to  liberty.  Central  power,  therefore,  for  national 
objects,  local  power  for  local  objects, — each  acting  in  its 
sphere,  and  both  obedient  to  popular  opinion, — is  the  ideal  of 
the  English  Government.  It  is  the  typical  form  towards 
which  the  institutions  of  all  people  of  English  origin  tend. 
It  is  represented  in  the  relations  which  England,  Scotland 
and  Ireland  bear  to  each  other.  It  is  represented  in  the  re- 
lation which  all  the  English  colonies  have  borne  and  still 
bear  to  the  parent  country,  and  it  is  represented  in  the  Ame- 
rican Union. 


104  THE    TRIAL    OF    THE     CONSTITUTION. 

Ireland  was  conquered  in  1171,  by  Henry  II,  and  par- 
celled out  among  ten  English  families  and  their  dependents, 
the  natives  being  either  expelled  from  their  lands,  or  treated 
as  a  subject  race.  The  English  laws  were  introduced  only  for 
the  benefit  of  the  English  settlers.*  Partly  because  of  the 
extent  of  the  domains  granted  to  them,  and  partly  because  of 
troubles  in  England,  which,  for  a  long  period,  directed  from 
Ireland  the  attention  of  the  Government,  the  English  chiefs 
became  almost  independent.  The  settlers,  also,  not  being 
replenished  from  the  parent  stock,  rapidly  degenerated,  as 
always  happens  from  the  contact  of  a  superior  with  an  infe- 
rior race,  where  the  latter  is  more  numerous.  They  adopted 
Irish  manners,  costume  and  language.  The  English  autho- 
rity and  influence  declined  until  the  time  of  Henry  VII.,  and 
was  restored  by  another  conquest  in  the  reign  of  Elizabeth, 
by  which  great  numbers  of  English  emigrants  were  intro- 
duced, to  whom  the  lands  of  the  conquered  natives  Avere 
allotted. f  By  these  means  the  Anglo-Irish  became  a  large 
portion  of  the  population,  and  the  island  an  important  part 
of  the  English  dominions. 

True  to  their  nature,  the  people,  that  is  to  say,  the  "  En- 
glishry,"  demanded  a  control  over  their  local  interests,  and 
in  the  reign  of  James  I  obtained  a  Parliament,  whose  acts 
were  subject  to  revision  by  that  of  England,  and  Ireland 
became  a  dependent  kingdom.  Thenceforth  Ireland  was  in- 
volved in  the  party  contests  of  England,  the  native  population 
always  siding  with  that  party  which  promised  them  relief 
from  the  English  yoke.  The  bitterness  of  religious  sectarian- 
ism became  connected  with  and  inflamed  the  hostility  of 
race  and  the  hatred  inspired  by  conquest  and  oppression.  In 
the  long  contest  between  Protestant  and  Papist,  the  people 
were,  at  the  same  time,  persecuted  as  Catholics  and  oppressed 
as  Irishmen.  Macaulay  thus  describes  the  relative  positions 
of  the  two  classes  : 

*  3  Hallam's  Constitutional  History,  4C5  ;  5  Bancroft's  History  of  United 
States,  73. 

t  1  Macaulay's  England,  GO. 


UNION.  105 

''  The  same  line  of  demarcation  which  separated  religion, 
separated  races  ;  and  the  Irish  were  of  the  conquered,  the 
subjugated  and  the  degraded  race.  On  the  same  soil  dwelt 
two  populations,  locally  intermixed,  morally  and  politically 
sundered.  The  difference  of  religion  was  by  no  means  the 
only  difference,  and  was  perhaps  not  the  chief  difference  that 
existed  betw^een  them.  They  sprang  from  different  stocks. 
They  spoke  different  languages.  They  had  different  national 
characters,  as  strongly  marked  as  any  tAvo  national  characters 
in  Europe.  They  w^ere  in  widely  different  states  of  civiliza- 
tion. There  could,  therefore,  be  little  sympathy  between 
them  ;  and  centuries  of  calamities  and  wrongs  had  generated  a 
strong  antipathy.  .  .  .  The  appellation  of  Irish  w^as  then  given 
exclusively  to  the  Celts,  and  to  those  families  who  though  not  of 
Celtic  origin,  had,  in  the  course  of  ages,  degenerated  into 
Celtic  manners.  These  people,  somewhat  under  a  million, 
had,  with  few  exceptions,  adhered  to  the  Church  of  Rome. 
Among  them  resided  about  two  hundred  thousand  colonists, 
proud  of  their  Saxon  blood,  and  of  their  Protestant  faith. 
The  great  preponderance  of  numbers  on  one  side,  was  more 
than  compensated  by  a  great  superiority  of  intelligence,  vigor 
and  organization  on  the  other.  The  English  settlers  seem  to 
have  been  in  knowledge,  energy  and  perseverance,  rather  above 
than  below  the  average  level  of  the  population  of  the  mother 
country.  The  aboriginal  peasantry,  on  the  contrary,  were  in 
almost  a  savage  state.  They  never  worked  till  they  felt  the 
sting  of  hunger.  They  were  content  with  accommodations  in- 
ferior to  that  which  in  happier  countries  was  provided  for 
domestic  cattle.  .  .  .  Even  within  a  few  miles  of  Dublin, 
on  a  soil  the  richest  and  most  verdant  in  the  world,  the 
traveller  saw  with  disgust  the  miserable  burrows  out  of  Avhich 
squalid  and  half-naked  barbarians  stared  wildly  at  him  as  he 
passed."* 

This  was  in  1680,  and  travellers  ever  since,  up  to  the  pre- 
sent time,  have  described  similar  scenes  ;  for  though  the  wealth 
and  civilization  of  Ireland  have  advanced  with  that  of  Eng- 

*  2  Macaulaj's  England,  118. 


106  THE    TRIAL     OF    THE     CONSTITUTION. 

land,  it  lias  really  been  the  wcaltli  and  civilization  of  the 
English  in  Ireland.  Ignorance  and  poverty  have  still  been 
the  characteristics  and  the  fate  of  the  Celt.  He  remains  un- 
altered through  the  centuries. 

With  such  discordant  elements  within,  acted  upon  by  so 
many  disturbing  causes  without,  the  history  of  Ireland  is  a 
tissue  of  rebellions  and  factions,  of  bloodshed,  crime  and 
misery.  The  island  has  been  the  plague  and  curse  of  the 
English  Government  at  every  period,  always  ready  to  resist 
its  authority  and  to  join  its  enemies.  These  troubles  arose 
partly  from  the  turbulent  spirit  of  the  Anglo-Irish,  and  partly 
from  the  undying  hatred  of  the  subject  race,  which  could  be 
neither  tamed,  civilized,  appeased  or  amalgamated  Avith  the 
superior.  At  length  the  remedy  for  these  disorders,  which 
had  successfully  been  employed  in  Scotland,  was  applied.  In- 
stead of  a  dependent  kingdom  with  a  separate  Legislature, 
Ireland,  by  the  Union  of  1801,  became  incorporated  into  Eng- 
land, with  a  share  of  representation  in  the  English  Parliament. 
At  the  same  time,  local  authority  over  local  interests  was 
secured  to  the  Irish  people. 

It  was  the  opinion  and  wants  of  the  English  race  in  Ire- 
land, not  of  the  Celtic,  which  demanded  this  arrangement, 
and  for  whose  benefit  it  was  made.  The  Union  was  opposed 
by  tlie  native  population  as  adding  new  chains  to  their  servi- 
tude, and  by  not  a  few  of  the  English  also,  as  a  merger  of 
the  dignity  and  independence  of  their  country  into  the  superior 
power  and  grandeur  of  England.  It  was  advocated,  because 
it  secured  for  Ireland  "  equality  of  interests,  equality  of 
privileges,  and  unity  of  power,"  with  tlie  stronger  nation.  It 
satisfied,  at  once,  the  love  of  centralization  and  of  local  govern- 
ment. It -has  been  a  benefit  to  both  races,  and  if  not  to  both 
equally,  that  is  to  be  attributed  to  the  inherent  diifcrences 
which  divide  them.  Ireland  did  not  cease  because  of  the 
Union  to  be  a  source  of  trouble  to  England,  both  in  peace  and 
in  war,  though  far  less  so  than  before.  Ireland  is  so  close  to 
England,  that  it  must  be  held  either  in  subjection  or  in  union. 
The  former  was  found  to  be  dangerous,  the  latter  is  not  en- 
tirely safe.     The  Celtic  population  docs  not  love  England  or 


UNION.  107 

the  dominion  of  England  over  them.  They  are  always  ready 
for  revolt,  always  ready  to  welcome  a  French  army  on  their 
shores.  A  union,  to  be  quite  safe,  must  be  one  of  feeling  as 
well  as  of  power,  not  such 

"  As  creates 
Divided  hearts,  united  states," 

and  such,  to  some  extent,  must  ever  be  that  which  seeks  to 
combine  two  different  races  in  one  political  community. 

The  English  Government,  however,  has  done  much  to  soften 
the  animosities  of  race  and  inferiority,  by  more  just  and 
humane  maxims  and  measures  than  formerly  prevailed,  in  its 
treatment  of  Ireland.  But  far  more  has  been  done  to  promote 
peace  and  order,  by  the  immense  emigration  of  the  Celtic 
race  to  our  shores,  their  place  having  been  rapidly  supplied  by 
English  settlers.  The  Irish  have  built  our  railroads,  have  dug 
our  canals,  have  helped  to  clear  and  plough  and  plant  the  wilder- 
ness, have  added  immensely  to  our  material  wealth,  and  are  , 
now  fighting  bravely  in  our  armies,  but  they  have  introduced 
the  element  of  a  different  race  into  our  country,  and  whether 
this  relief  to  England  be  also  a  benefit  to  us,  may  well  be 
doubted. 

The  union  between  England  and  Ireland  afforded  no  light  to 
our  ancestors  in  making  the  Constitution,  since  it  took  place 
in  1801.  It  is  noticed  here,  partly  to  show  the  nature  of 
what  may  be  called  the  English  Confederacy,  and  partly, — as 
will  be  explained  further  on, — because  it  affords  an  example 
of  the  dangers  and  difficulties,  alike  of  union  and  of  disunion, 
when  two  coiTntries  lie  side  by  side,  and  the  people  of  one  of 
them  are  of  a  different  and  inferior  race,  existing  in  such 
numbers  as  to  give  them  powerful  influence  over  the  character, 
the  interests,  the  manners,  the  opinions  and  the  destiny  of 
the  superior.  Neither  separation,  nor  union,  nor  conquest, 
nor  subjugation,  nor  oppression,  nor  cruelty,  nor  almost  ex- 
termination, nor  justice,  nor  kindness, — for  all  have  been 
tried, — have  been  able  to  make  of  Ireland  anything  but  a  pest 
and  nuisance  to  England,  a  constant  source  of  difficulty  and 
danger,  a  moral,  social  and  political  curse.     Gladly  would  the 


108  THE    TRIAL    OF    THE     CONSTITUTION, 

English  Government  and  people  have  got  rid  of  it,  if  they 
could,  as  Carlyle  says,  "send  it  off  some  three  thousand 
miles  from  their  coast."  One  thing  only  has  succeeded,  and 
that  is  colonization, — a  plan,  hy  the  Avay,  Avhich  Carlyle  him- 
self recommended,  hut  which  has  been  executed,  not  by  the 
English  Government,  but  by  causes  beyond  its  control.  The 
colonization  Avas  voluntary.  The  whole  power  of  England 
could  not  have  effected  it  by  force. 

The  last  rising  of  the  native  race  against  the  English  was 
stimulated  by  the  French  Revolution,  which  inspired  them 
with  wild  hopes  of  freedom.  Again,  the  Celt  expected  succor 
from  France,  again  the  Saxon  triumphed  by  his  knowledge 
and  his  skill,  backed  by  the  power  of  England.  Soon  after 
this  the  union  followed,  and  then  the  enlightened  spirit  of  the 
age  demanded  for  the  Irish, — that  is  to  say,  for  the  Celt, — 
the  benefits  of  the  free  Constitution  of  England.  This,  too, 
was  at  length  accorded.  But,  as  Macaulay  says,  "  this  late 
triumph  of  reason  and  humanity  was  immediately  followed  by 
disappointment ;  it  proved  far  less  easy  to  eradicate  evil  passions 
than  to  repeal  evil  laws,  and  long  after  every  trace  of  reli- 
gious and  national  animosity  had  been  obliterated  from  the 
statute-book,  national  and  religious  animosities  continued  to 
rankle  in  the  bosom  of  millions."  He  concludes  with  express- 
ing a  hope  that  "Avisdom,  justice  and  time,"  may  gradually 
do  in  Ireland,  Avhat  they  have  done  in  Scotland,  and  that  all 
the  races  of  the  British  Isles  may  be  "  indissolubly  blended 
into  one  people."*  This  hope  can  never  be  realized  till  the 
numbers  of  the  Celtic  race  become  too  few  to  excite  alarm  or 
distrust,  and  then  the  inhabitants  of  the  British  Isles  will  be 
regarded  as  one  people,  only  because  the  element  that  refuses 
to  blend  with  them,  will,  like  the  Celts  in  Wales  and  in  the 
Highlands,  be  too  small  to  be  taken  into  the  account. 


The  union  with  Scotland,  Avhich  Avas  made  in  1707,  Avas  the 
model  of  the  union  Avith  Ireland.     There  is  little  difference 

*  4  Macaulay's  England,  118. 


UNION.  109 

between  their  terms.  Their  ruling  principle  is,  a  central 
power,  over  which  the  people  of  both  countries  have  control 
by  means  of  a  legislature  representing  each,  combined  with 
local  powers  for  local  affairs. 

Before  the  union,  both  Ireland  and  Scotland  were  subjected 
to  the  English  Crown,  but  not  to  the  English  Parliament. 
They  had  Parliaments  of  their  own,  and  the  authority  of  the 
English  monarch  was  exercised,  not  upon  the  people  directly, 
but  indirectly  through  these  local  Parliaments.  The  relation 
which  each  of  these  two  States  bore  to  England  was  widely 
different.  Ireland  was  a  conquered  country  colonized  by 
England,  the  colonies  holding  a  greatly  superior  number  of 
the  native  race  in  subjection,  and  therefore  from  the  first,  de- 
pendent on  England  for  aid  and  governed  by  its  laws.  Scot- 
land, on  the  contrary,  until  the  feudal  union  of  the  two  Crowns 
in  1603,  under  James  I,  was  an  independent  nation.  It  had 
resisted  every  attempt  by  England  to  conquer  it,  and  its  re- 
sistance formed  the  most  glorious  part  of  its  annals.  The 
reason  was  that  its  people  were  of  the  same  Teutonic  stock  as 
those  of  England. 

"The  population  of  Scotland,  with  the  exception  of  the 
Celtic  tribes  thinly  scattered  over  the  Hebrides  and  the  moun- 
tainous parts  of  the  northern  shires,  was  of  the  same  blood 
with  the  population  of  England,  and  spoke  a  tongue  which  did 
not  differ  from  the  purest  English,  more  than  the  dialects  of 
Somersetshire  and  Lancashire  from  each  other.  In  Ireland 
on  the  contrary,  the  population,  with  the  exception  of  the 
small  English  colony  near  the  coast,  was  Celtic,  and  still  kept 
the  Celtic  speech  and  manners."* 

The  aboriginal  people  of  Scotland,  as  of  all  the  British  Isles, 
was  Celtic.  Two  centuries  before  the  Christian  era,  Scotland 
was  invaded  and  conquered  by  the  Picts,  a  tribe  of  the  Gothic 
race,  who  occupied  the  more  fertile  lands  of  the  south,  driving 
the  Celts  to  the  hills  or  highlands,  where  they  were  after- 
wards reinforced  by  the  emigration  of  their  brethren  from 

*  1  Macaulay's  England,  61. 


110  THE    TRIAL     OF    THE     CONSTITUTION. 

Ireland,  and  in  their  turn  conquered  the  Picts.*  These  Goths 
were  the  Caledonians,  who  so  long  and  bravely  resisted  the 
Roman  power,  which  others  of  their  blood  were  destined  after- 
wards to  overturn  in  Italy.  They  were  described  by  Tacitus 
as  of  German  origin,  indicated  by  their  stature,  ruddy  hair 
and  fair  complexion. f 

Scotland  was  afterwards  invaded  by  the  Norwegians,  who 
continued  their  incursions  till  1263,  subdued  both  Pict  and 
Celt,  and  established  the  ascendency  of  the  Germanic  race. 
These  people  maintained  their  independence  against  all  the 
efforts  of  England  to  subdue  them.  They,  too,  were  of  Teu- 
tonic blood.  Whilst  the  English  colonists  in  Ireland,  wholly 
dependent  on  England,  were  governed  by  the  English  CroAvn, 
whose  previous  assent  was  necessary  to  all  laws  passed  by 
their  own  Parliament,  Scotland,  on  becoming  part  of  the 
British  monarchy,  retained  her  own  Constitution  and  laws. 
She  gave  a  king  instead  of  receiving  one,  and  her  tribunals 
and  Parliament  Avere  entirely  distinct  and  independent  of  those 
of  England. J 

This  union,  however,  proved  insufficient  either  for  govern- 
ment or  peace.  The  authority  of  the  Crown  was  great  enough 
to  irritate,  but  not  enough  for  real  government.  Differences 
of  religion,  the  animosities  created  by  centuries  of  war,  the 
many  causes  of  quarrel  necessarily  arising  between  bordering 
nations  and  the  revolutions  that  occurred  in  England,  proved 
sources  of  constant  dissension.  The  parties  that  divided  Eng- 
Idnd  divided  Scotland  also.  She  was  conquered  by  Cromwell, 
she  was  conquered  again  by  William  III,  or  rather  the  Jacobite 
party  Avas  conquered,  and  at  length  to  put  an  end  to  quarrels 
that  seemed  otherwise  interminable,  and  to  secure  a  more  per- 
fect union  than  was  afforded  by  having  one  branch  only  of  the 
government  in  common  and  all  others  separate,  a  compact  was 
made  in  1707,  by  Avhich  for  general  purposes  all  branches  of 
the  Government  should  be  the  same  for  both  nations ;  the  same 

*  2  Buckle's  History  of  Civilization  in  England,  129. 
t  Life  of  Agricola,  |  XI. 
J  1  Maeaulay's  England,  62. 


UNION.  Ill 

Executive  and  the  same  Legislature,  in  which  latter,  each 
should  be  fairly  represented.  "  Equality  of  interests,  equality 
of  rights  and  unity  of  power,"  were  thus  secured,  as  in  the 
case  of  Ireland  :  local  laws  and  customs  were  respected,  but 
with  these  central  authority  was  established.  As  happened 
in  Ireland,  the  union  was  fiercely  opposed  by  the  majority  of 
the  Scotch  people.  But  time  soon  disclosed  its  benefits.  It 
has  proved  a  great  blessing  to  both  countries,  whose  people, 
being  of  kindred  race,  needed  only  the  removal  of  barriers  of 
separation  to  make  them  one  nation. 


Now  what  were  the  terms,  and  what  was  the  law  of  this 
union,  which  must  have  been  before  the  minds  of  our  fathers 
before  they  made  the  Constitution ;  a  union  that  was  brought 
about  by  the  same  necessity  that  produced  ours,  but  which  had 
much  more  formidable  obstacles  to  encounter.  By  the  articles 
agreed  upon  the  two  kingdoms  are  united  into  one,  by  the 
name  of  Great  Britain  ;  the  succession  to  the  crown  is  to  be 
the  same  as  before  settled,  with  regard  to  England  ;  the  United 
Kingdom  shall  be  represented  by  one  Parliament ;  there  shall 
be  a  communication  of  all  rights  and  privileges  between  the 
subjects  of  both  kingdoms  ;  the  standards  of  coin,  weights  and 
measures  shall  be  reduced  to  those  of  England,  throughout  the 
United  Kingdoms  ;  the  laws  relating  to  trade,  customs  and  the 
excise,  shall  be  the  same  in  Scotland  as  in  England.  But  all 
other  laws  of  Scotland  shall  remain  in  force,  though  alterable 
by  the  Parliament  of  Great  Britain.  "  Yet  with  this  caution, 
that  laws  relating  to  public  policy  are  alterable  at  the  discre- 
tion of  the  Parliament ;  laws  relating  to  private  rights  are  not 
to  be  altered  but  for  the  evident  advantage  of  the  people  of 
Scotland."* 

This  was  the  Act  of  Union,  and  these  its  chief  articles,  and 
they  embody  the  principles  upon  which  our  Union  was  foimded. 
A  new  nation  with  a  new  name  is  created  by  both.  In  each 
the  people  are  represented  in  the  same   Legislature.     The 

*  1  Blackstone's  Comm.,  96, 


112  THE     TRIAL    OF    THE     CONSTITUTION. 

powers  of  Parliament  were  already  well  defined,  and  it  was 
only  necessary  to  add,  that  the  standard  of  coin,  weights  and 
measnres  should  be  uniform,  and  the  laws  relating  to  trade, 
customs  and  excise  the  same  in  both  countries,  which  is  also 
done  in  our  Constitution.  A  common  enjoyment  of  all  rights 
and  privileges  by  the  people  of  both  nations  in  each,  is  pro- 
vided by  the  English  act,  and  for  the  people  of  the  States,  in 
Article  4,  sect.  2,  of  our  Constitution.  All  the  restraints 
imposed  on  our  States  are  implied  by  the  supremacy  of  Parlia- 
ment and  the  prerogatives  of  the  Crown.  The  principle  of 
central,  combined  with  local  power  is  expressed  in  the  last 
clauses  of  the  above  extract,  which  declare  that  the  laws  of 
Scotland  shall  remain  in  force,  though  they  may  be  altered  by 
the  Parliament  representing  both  nations.  No  such  power  is 
expressly  given  to  Congress  over  the  laws  of  the  States,  and 
the  independence  of  local  authority  in  our  system  is  also  more 
amply  provided  for  by  the  separate  governments  of  the  States, 
comprising  executive,  legislative  and  judicial  authority,  which 
continued  after  the  Union,  but  did  not  continue  either  in  Scot- 
land or  Ireland  after  their  union  with  England.  The  great 
extent  of  our  country,  even  in  1787,  would  have  rendered  it 
inconvenient  or  impossible  for  the  General  Government  to  legis- 
late for  the  different  States,  and  so  strong  was  the  feeling  of 
local  attachment  and  the  love  of  local  power,  that  the  people 
would  not  have  consented  to  give  up  their  separate  State  sove- 
reignties which  they  had  enjoyed  as  colonies. 

The  people,  both  of  Ireland  and  Scotland,  were  also  averse 
to  do  this,  and  had  the  Union  depended  upon  their  votes,  it 
would  never  have  been  made.  But  their  Governments  were 
not  democracies.  The  people  were  not  consulted.  The  Le- 
gislature of  each  country  was  influenced  partly  by  the  obvious 
expediency  of  the  measure,  and  partly  l)y  the  power  and  arts 
of  the  English  Government,  by  corruption  and  intimidation. 
On  each  occasion  it  was  necessary  to  deal  only  with  one  State. 
In  our  case,  the  consent  of  nine  States,  to  be  given  by  a  popu- 
lar vote  in  each,  was  necessary  to  ratify  the  Constitution,  and 
to  create,  at  the  same  time,  a  Union  and  a  Government.  The 
consent  of  these  nine  States  was  obtained  with  great  difficulty. 


UNION.  113 

It  was  obtained  under  the  pressure  of  obvious  necessity,  by 
the  influence  of  the  great  names  that  had  become  famous  dur- 
ing the  war,  and  not  by  any  just  appreciation  by  the  people 
either  of  the  merits  of  the  Constitution  or  the  advantages  of 
the  Union.*  Two  States  refused  fov  a  long  time  to  accede  to 
the  plan,  and  did  so  at  length  only  because  they  would  have 
been  too  weak  to  stand  alone. 

The  spirit  of  State  sovereignty  was  further  manifested  by 
the  Tenth  Article  of  the  Amendments  to  the  Constitution, 
which  declares  that  "  the  powers  not  delegated  to  the  United 
States  by  the  Constitution,  7ior  2)rohibited  hy  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the  people."  All 
this  is  im^Dlied  by  the  terms  already  quoted  of  the  Act  of  Union 
between  England  and  Scotland ;  but  that  act,  whilst  defining 
the  duty,  asserts  the  supremacy  of  Parliament. 

We  see,  therefore,  that  the  British  Union  is  more  complete 
than  ours,  and  the  three  IsTations  have  been  made  more  effectu- 
ally one  than  the  States  under  our  Constitution  ;  because  in 
the  former  the  central  power  is  stronger  and  the  local  power 
weaker.  What,  then,  is  the  English  law  of  Union  ?  It  is 
thus  stated  by  Blackstone :  "  The  two  Kingdoms  are  now  so 
inseparably  united  that  nothing  can  ever  disunite  them  again, 
except  the  mutual  consent  of  both  or  the  successful  resistance 
of  either,  upon  apprehending  an  infringement  of  those  points 
which,  when  they  were  separate  and  independent  nations,  it 
was  mutually  stipulated  should  be  fundamental  and  essential 
conditions  of  the  Union.' '^^ 

Two  modes  of  dissolving  the  English  Union  are  here  pointed 
out, — one  legal,  the  other  revolutionary.  It  may  be  destroyed 
by  mutual  consent  of  the  parties, — that  is  to  say,  by  an  act 
of  Pai^iament  in  which  both  are  represented, — for  neither  of 
them  has  any  other  mode  of  expressing  its  assent, — or  by  suc- 
cessfid  forcible  resistance.  The  latter  method  is  the  exercise 
of  a  right  which  cannot  be  provided  for  by  any  Constitution, 
for  it  is  paramount  to  all  law, — the  right  of  self-defence  against 

*  2  Marshall's  Washington,  127. 
t  1  Blackstone's  Comm.,  98. 


114  THE    TRIAL    OF    THE    CONSTITUTION. 

manifest  injustice  and  oppression.  It  is  a  riglit  no  law  can 
establish  -without  declaring,  at  the  same  time,  that  its  own  au- 
thority maj  be  set  at  defiance, — which  would  be  suicidal  and 
inconsistent  with  the  idea  of  law  or  government.  It  is  a  right, 
moreover,  which  cannot  be  settled  by  any  Constitution  or  sta- 
tute, because  the  circumstances  under  which  it  may  arise  can- 
not, from  their  nature,  be  defined. 

It  is  clear  that  Blackstone  did  not  intend  to  speak  of  resist- 
ance as  a  legal  right,  but  only  as  a  way  in  which  the  Union 
might  be  broken  in  fact,  for  he  speaks  of  successful  resist- 
ance,— that  is  to  say,  resistance  opposed  by  the  Government. 
Resistance  maybe  morally  justifiable,  though  defeatefl;  and 
the  legal  right  to  dissolve  the  Union  'because  its  terms  had 
been  violated  cannot  be  contingent  on  the  chances  of  a  physi- 
cal contest.  So,  also,  if  the  Government  may  oppose  resist- 
ance, it  may  subdue  it,  and  thus  preserve  the  Union  against 
the  wishes  of  one  party;  though,  if  resistance  or  rebellion 
cannot  be  subdued,  it  becomes  revolution, — in  which  case  the 
Union  would  be  severed  in  fact,  and,  Avhen  the  separated  part 
was  recognized  by  the  Government,  would  be  severed  in  law. 

The  right  and  the  duty  of  Government,  and  the  possibility 
of  disunion  as  a  practical  result  of  an  abuse  of  power,  are 
stated  in  a  note  on  the  same  page,  explanatory  of  the  text 
quoted  above.  "  It  may  justly  be  doubted  whether  such  an 
infringement"  (of  the  fundamental  conditions  of  the  Union), 
"though  a  manifest  breach  of  good  faith,  unless  done  on  the 
most  pressing  necessity^  would  of  itself  dissolve  the  Union  ;  for 
the  hare  idea  of  a  State,  ivithout  a  poiver  someivhere  vested  to 
alter  every  part  of  its  laws,  is  the  height  of  political  absurdity. 
The  truth  seems  to  be,  that  in  such  an  incorporate  Union 
(which  is  Avell  distinguished  by  a  learned  prelate  from  a  Fede- 
rate alliance,  Avhere  such  an  infringement  Avould  certainly  re- 
scind the  compact),  the  tAvo  contracting  States  are  totally 
annihilated,  without  any  power  of  a  revival ;  and  a  third  arises 
from  their  conjunction,  in  which  all  the  rights  of  sovereignty, 
and  particularly  that  of  legislation,  must  of  necessity  reside. 
But  the  wanton  or  imprudent  exertion  of  this  riglit  would  pro- 
bably raise  a  very  alarming  ferment  in  the  minds  of  individuals. 


UNION.  115 

and  therefore  it  is  hinted  above,  that  such  an  attempt  might 
endanger,  though  bj  no  means  destroy  the  Union." 

The  English  law  then  is  clear  enough.  Bj  the  several  acts 
uniting  England  with  Scotland  and  Ireland,  the  separate  ex- 
istence of  each  became  merged  into  that  of  a  new  nation,  called 
thenceforward  "  The  Kingdom  of  Great  Britain  and  Ireland," 
and  governed  by  a  Legislature  representing  the  whole,  which 
Legislature  is  supreme.  It  is  still  the  English  Parliament, 
with  its  attribute  of  omnipotence.  It  has  power  as  before  over 
the  whole  nation,  and  all  its  parts,  to  maintain  the  Union,  or 
to  dissolve  it.  A  separation  must  be  the  work  of  Parliament, 
not  of  Ireland  or  of  Scotland.  It  may  be  granted  to  the 
wishes  of  either,  or  it  may  be  refused,  according  to  the  plea- 
sure of  Parliament.  So  much  Blackstone  says,  and  so  much 
may  be  inferred,  from  the  fact  of  the  legislative  union  of  the 
three  kingdoms,  and  the  accepted  doctrine  that  Parliament  is 
omnipotent. 

But  another  inference  from  both  may  also  be  drawn,  which 
is,  that  Parliament  has  legal  power  to  dismember  the  nation  by 
withdrawing  from  any  portion  of  it  the  authority  and  protec- 
tion of  the  Government,  and  excluding  such  portion  from  its 
rights  and  privileges  under  the  Union.  An  act  of  this  sort 
might  be  oppressive  and  a  violation  of  good  faith,  or  necessary 
and  just,  according  to  circumstances.  It  might  be  the  result 
of  an  unsuccessful  war,  in  which  the  cession  of  territory  was 
exacted  by  a  victorious  enemy,  as  the  only  condition  of  peace, 
or  it  might  be  demanded  by  a  majority  of  the  nation  as  essen- 
tial to  their  interests,  their  safety  or  their  tranquillity.  It  is 
a  supposable  case,  that  either  Ireland  or  Scotland  might  be- 
come disaffected  to  the  Government,  and  that  Parliament 
would  prefer  to  get  rid  of  either,  rather  than  hold  it  in  subjec- 
tion by  force.  It  is  supposable  that  the  Celtic  race  might  be- 
come dominant  in  Ireland,  that  by  their  turbulence,  their 
ignorance  and  their  pauperism,  the  English  should  be  driven 
out  of  the  island  or  be  reduced  to  the  level  of  the  Celt,  and 
that  the  English  people  would  refuse  to  live  on  equal  terms, 
or  any  terms,  with  a  country  which  could  not  participate  in 
their  civilization  or  liberty,  or  share  their  destiny.     In  these 


116  THE    TRIAL     OF    THE     CONSTITUTION". 

and  other  cases  that  may  be  imagined  and  may  happen,  there 
can  be  no  doubt  of  the  legal  power  of  Parliament  to  sever  the 
luiion,  for  Parliament  has  sovereign  power  over  the  nation. 

Such,  then,  is  the  English  law  of  the  Union  of  the  British 
Empire.  Parliament  has  sovereign  power,  either  to  maintain 
it  or  to  break  it,  and  over  that  question  no  one  of  the  compo- 
nent parts  has  any  poiver  ivJiatever.  This,  indeed,  is  only 
another  way  of  saying  that  Great  Britain  is  a  nation  and  has 
a  Government ;  for  every  Government  must  have  supreme  con- 
trol over  all  its  domain.  If  it  be  asked  what  security  the 
people  of  Ireland  and  Scotland  have  against  oppression, 
against  the  violation  of  the  terms  of  the  original  compact,  or 
against  the  arbitrary  sundering  of  the  Union,  the  ansAver  is, 
that  they  have  all  the  security  which  the  case  admits.  They 
have  the  security  ttfforded  by  the  votes  and  influence  of  Scotch 
and  Irish  members  of  Parliament,  by  the  benefits  which  the 
Union  has  conferred  on  the  Avhole  nation,  by  an  enlightened 
and  vigilant  public  opinion,  by  the  control  exercised  by  that 
opinion  over  Parliament,  through  the  elections  and  by  the 
character  of  the  Government  itself,  its  intelligence,  honor, 
public  spirit  and  sense  of  duty.  No  constitutional  provisions 
can  afibrd  safeguards  equal  to  these.  Should  these  fail,  any 
other  must  prove  ineffectual.  They  have  not  failed  during 
an  experience  of  a  hundred  and  fifty  years  in  the  case  of 
Scotland,  and  of  sixty  years  in  the  case  of  Ireland.  By  the 
contract  of  union,  the  contracting  parties  ceased  to  exist.  That 
they  should  do  so  was  the  very  object  of  the  contract.  A  new 
nation  and  a  ncAV  Government  were  created,  a  Government 
necessarily  without  a  legal  superior,  and  invested  with  all  the 
powers  of  the  three,  before  independent.  This  Government 
has  no  internal  checks,  nor  can  have.  All  control  over  it 
must  be  external,  such  as  above  described,  and  should  these 
fail,  the  ultimate  remedy  for  injustice  remains, — the  natural 
right  of  resistance,  an  extreme  remedy  for  extreme  ills,  to  be 
resorted  to  only  when  all  redress  by  other  means  is  hopeless. 

Such  is  the  English  law  of  Union.  It  arose  out  of  ne- 
cessity imposed  by  circumstances.  Three  nations,  close 
neighbors,  inhabited  by  different  races,  were  engaged  in  con- 


UNION.  117 

stant  and  inevitable  wars.  By  conquest  and  by  the  accident 
of  hereditary  succession  to  the  Crown,  the  three  became  par- 
tially united.  Partial  separation,  nevertheless,  was  sufficient 
to  maintain  the  old  discord.  Fierce  and  cruel  wars,  checking 
the  progress  of  civilization  in  each  country,  and  devastating 
with  fire  and  sword  the  weaker,  continued  through  many  cen- 
turies. At  length,  some  wise  men  thought  of  uniting  the 
three  nations  under  one  Government,  as  they  were  already 
united  under  one  Crown.  They  were  separated  from  the  rest 
of  the  world  by  a  sea,  then  not  so  easily  passed  as  it  is  now. 
If  they  could  be  at  peace  with  each  other  and  form  one  people, 
their  combined  power  might  secure  them  from  foreign  attacks, 
whilst  tranquil  and  safe  at  home,  their  genius  and  industry 
would  insure  rapid  progress  in  wealth  and  refinement. 

For  the  sake  of  these  advantages,  the  three  nations  ac^reed 
to  annihilate  their  separate  existence  and  become  one  nation, 
living  under  one  Government.  It  is  clear  that  their  new  con- 
dition made  it  necessary  that  a  power  be  lodged  somewhere 
to  maintain  the  Union,  should  it  prove  beneficial,  and  to  dis- 
solve it,  if  found  productive  of  more  evil  than  good.  Only  in 
the  Government  that  represented  the  whole  could  this  power 
be  placed.  To  grant  it  to  each  of  the  parts  would  have 
given  to  a  part  power  over  the  whole,  would  have  continued 
the  separate  existence  of  each,  and  would  have  created  not  a 
Union,  but  an  alliance, — the  very  thing  the  Act  of  Union 
meant  to  avoid. 


We  have  shown  that  our  Constitution  is  very  similar  to  the 
Act  of  Union  between  England,  Scotland  and  Ireland,  so 
far  as  it  relates  to  the  great  principles  of  central  and  local 
power.  But  Scotland  and  Ireland  are  parts  only  of  the 
British  Confederacy,  of  which  our  ancestors  were  members. 
What  was  the  Laiv  of  Union  between  Great  Britain  and  her 
Colonies  ?  Whatever  it  was,  it  must  have  served  as  a  guide 
or  a  warning,  or  as  both,  to  those  who  made  our  Constitution, 
and  may,  perhaps,  enable  us  to  find  out  their  meaning,  or  what 


118  THE    TRIAL     OF    THE    CONSTITUTION. 

is  still  more  important,  to  establish,  on  safe  and  just  founda- 
tions, the  law  of  to-day. 

As  already  stated,  the  idea  of  union  Avas  no  novelty  to  the 
American  people  before  the  War  of  Independence.  The  Colo- 
nists were  already  united,  not  only  by  similarity  of  race, 
language,  laws,  literature  and  history,  but  they  were  united 
under  one  general,  central  government.  They  were  fellow- 
subjects  of  the  British  Crown,  and  entitled  to  all  the  rights 
and  privileges  of  Englishmen, — among  them,  to  the  privilege 
of  self-government  and  the  right  of  granting  or  refusing  their 
assent,  by  their  representatives,  to  laws  which  taxed  their 
property  or  controlled  their  personal  or  local  interests.  For 
the  purposes  of  local  government,  each  colony  had  its  own 
Legislature  and  its  own  Courts.  They  all  formed  a  part  of 
the  British  Empire,  were  entitled  to  its  protection  and  go- 
verned by  its  laws,  in  things  that  related  to  the  government 
of  all. 

In  these  respects  the  position  of  the  Colonies  was  similar  to 
that  of  Ireland,  which  was  a  distinct  dominion  and  had  its 
own  Parliament,  so  that  no  acts  of  the  English  Parliament 
extended  into  it,  unless  it  was  specially  named.  Its  right  of 
self-government  was  recognized  as  early  as  the  reign  of  Henry 
VI  and  Richard  III,  when  it  was  declared  that  "  a  tax  granted 
by  the  Parliament  of  England  shall  not  bind  those  of  Ireland, 
because  they  are  not  summoned  to  our  Pm-liament."  And 
again  :  "  Ireland  hath  a  Parliament  of  its  own,  and  maketh 
and  altereth  laws ;  and  our  statutes  do  not  bind  them,  because 
they  do  not  send  knights  to  our  Parliament."* 

The  violation  of  these  ancient  privileges  produced  the 
American  Revolution.  With  what  affection  the  Colonies  clung 
to  the  mother  country,  how  much  they  endured,  how  long 
they  remonstrated  and  entreated,  with  what  reluctance  the 
idea  of  resistance  or  independence  was  admitted,  are  well 
known.  Nothing  short  of  gross  injustice  and  persistent  out- 
rage to  the  ruling  sentiment  of  their  race,  the  love  of  self- 
government,  could  have  weakened  or  destroyed  their  loyalty. 

*  1  Blackstone's  Comra.,  101. 


UNION.  119 

''In  America,"  said  Samuel  Elliot,  of  Boston,  in  1767,  "the 
people  glory  in  the  name  and  only  desire  to  enjoy  the  liberties 
of  Englishmen.  There  is  not  the  least  foundation  for  the 
suspicion  that  they  aim  at  independence.  If  we  have  no 
forces  or  new  stamp  act,  I  would  almost  answer  for  them. 
Our  warmest  patriots  speak  of  our  connection  with  Great 
Britain  as  a  felicity  ;  and  to  have  it  broken,  as  one  of  the 
greatest  misfortunes  that  could  befall  us."*  And  again,  in 
1774,  after  the  tea  had  been  thrown  into  Boston  harbor,  and 
the  mutterings  of  war  were  heard  in  the  approaching  future, 
when  Franklin  was  departing  to  make  a  last  effort  at  recon- 
ciliation, his  instructions  contained  these  words  : 

"  The  old  good-will  and  affection  of  the  people  for  the 
parent  country  are  not  totally  lost ;  if  she  returns  to  her 
former  moderation  and  good  humor,  their  affection  will  revive. 
They  wish  for  nothing  more  than  a  permanent  union  Avith  her 
on  the  condition  of  equal  liberty.  This  is  all  they  have  been 
contending  for,  and  nothing  short  of  this  will  or  ought  to 
satisfy  them."f 

But  England  would  not  be  entreated.  Her  Government 
determined  to  assert  the  supremacy  of  Parliament,  and  could 
think  of  no  better  way  to  do  this  than  by  measures  which 
violated  well-established  constitutional  principles  and  rights 
long  enjoyed.  It  was  the  oppressive  use  of  power  that  the 
Americans  resisted.  The  theoretical  "omnipotence"  of  Par- 
liament could  not  be  denied.  It  Avas  not  really  denied  in 
America ;  it  was  never  doubted  by  the  friends  of  America  in 
England.  No  one  could  pretend  that  an  act  of  Parliament 
was  legally  void,  though  unconstitutional, — that  is  to  say,  a 
departure  from  established  custom,  and  though  its  tyrannical 
character  might  justify  resistance. 

The  Americans  contended  for  an  idea,  the  right  to  tax  them- 
selves, the  right  of  local  legislation,  a  right  which  belonged  to 
them  as  Englishmen.  The}^  had  borne  heavy  burdens  on  their 
industry,  vexatious  fetters  on  their  enterprise  and  commerce, 

*  6  Bancroft's  History,  Y3. 
t  6  Bancroft's  History,  509. 


120  THE    TRIAL    OF    THE     CONSTITUTION. 

in  the  shape  of  navigation  acts,  duties  and  restrictions  imposed 
for  the  benefit  of  England,  Avithout  murmuring.  But  to  lay  a 
direct  tax  upon  them,  like  that  of  the  stamp  act,  without  the 
consent  of  their  own  representatives,  violated  their  rights  and 
their  instinctive  love  of  self-government.  Thej  resisted  it. 
Had  they  been  French  colonists,  they  would  not  have  resisted. 
The  French  colonies  are  governed  in  all  their  interests  by  the 
central  power  at  Paris,  Avithout  a  murmur  of  discontent.  "  If 
taxes  are  laid  upon  us,"  said  Boston  in  1764,  "without  our 
having  a  legal  representation  loliere  they  are  laid,  are  Ave  not 
reduced  from  the  character  of  free  subjects,  to  the  miserable 
condition  of  tributary  slaves  ?  This  annihilates  our  charter 
right  to  govern  and  tax  ourselves.  We  claim  British  rights, 
not  by  charter  only;  Ave  Avere  born  to  them."*  To  the  same 
efi'ect  is  the  protest  of  the  Assembly  of  Massachusetts.  "  Can 
it  be  possible  that  duties  and  taxes  shall  be  assessed  Avithout 
the  voice  or  consent  of  an  American  Parliament  ?  If  A\-e  are 
not  represented  Ave  are  slaves.  Ireland  Avas  a  conquered  coun- 
try, yet  no  duties  AA^ere  levied  in  Ireland  by  the  British  Parlia- 
ment."f  Patrick  Henry  maintained  that  "the  inhabitants  of 
Virginia  inherited  from  the  first  settlers  of  that  dominion 
equal  franchises  AA'ith  the  people  of  Great  Britain ;  that  taxa- 
tion by  their  representatives  was  the  distinguishing  character- 
istic of  British  freedom  and  the  Constitution."  "We  ha\'e 
the  rights  of  Englishmen,"  was  the  common  voice,  "and  as 
such  Ave  are  to  be  ruled  by  laAvs  of  our  OAvn  making,  and  tried 
by  men  of  our  OAvn  condition." 

By  the  joint  influence  of  the  rising  discontent  of  the  colo- 
nists, and  the  eloquent  arguments  of  their  friends  and  advo- 
cates in  Parliament,  the  Stamp  Act  Avas  repealed,  though  the 
purpose  of  raising  revenue  in  America  by  internal  taxation 
Avas  not  relinquished.  This  had  been  done  before  by  external 
regulations  of  commerce  and  restrictions  upon  trade  and  manu- 
fiictures,  to  Avhich  the  colonists  had  long  submitted.  They, 
hoAvever,  made  bold  by  success,  by  consciousness  of  groAv- 

*  Bancroft's  History  of  United  States,  197. 
t  Ibid.,  199-286. 


UNION,  121 

ing  strength,  by  union,  and  their  views  enlarged  by  the  dis- 
cussions which  had  been  elicited,  discovered  that  in  principle 
there  was  no  difference  between  being  burdened  by  external 
duties,  levied  without  their  consent  in  England,  and  by  internal 
taxes  collected  in  America,  though  the  former  had  been  long 
borne  without  complaint.  When  asked  by  the  House  of  Com- 
mons, in  1766,  to  point  out  the  difference  between  them,  Frank- 
lin could  only  mention  a  practical  diflference  :  "  The  people 
may  refuse  commodities  of  which  the  duty  makes  a  part  of  the 
price,  but  an  internal  tax  is  forced  from  them  without  their 
consent." 

When  asked  whether  Parliament's  right  of  external  taxation 
might  not  also  be  objected  to,  he  replied  that  it  had  never  been 
hitherto.  "  Many  arguments  have  been  made  here,  lately,  to 
show  that  there  is  no  difference,  and  that  if  you  have  no  right 
to  tax  them  internally  you  have  none  to  tax  them  externally, 
or  make  any  other  latv  to  hind  them.  At  present  they  do  not 
reason  so,  but  in  time  they  may  be  convinced  by  these  argu- 
ments."* 

They  were  convinced  by  them  and  by  the  oppressive  mea- 
sures of  the  English  Government,  and  the  result  at  length  was 
a  Declaration  of  Independence  and  war.  It  is  to  be  observed 
that  war  and  consequent  separation  might  have  been  avoided 
by  the  expedient  which  had  before  made  peace  between  Eng- 
land and  Scotland,  and  afterwards  between  England  and  Ire- 
land,— a  Legislative  Union.  Had  the  Colonies  been  allowed 
to  send  representatives  to  the  English  Parliament,  the  prin- 
ciples so  zealously  maintained  by  America  would  have  been 
satisfied.  This  plan  was  frequently  suggested  and  discussed 
during  the  long  controversy,  but  was  not  pressed  by  the  colo- 
nists on  the  ground  that  it  was  impracticable,  and  was  rejected 
by  Parliament  for  the  alleged  and  absurd  reason  that  they  were 
already  virtually  represented.  An  able  and  very  influential 
pamphlet  of  the  day  (1765)  thus  stated  the  point :  "It  is  not 
the  tax,  it  is  the  unconstitutional  manner  of  imposing  it,  that 
is  the  great  object  of  uneasiness  to  the  Colonies.     The  Minister 

*  5  Bancroft's  History  of  United  States,  432. 


122  THE     TRIAL     OF     THE     CONSTITUTION. 

admitted  in  Parliament  that  they  had  in  the  fullest  sense  the 
right  to  be  taxed  only  by  their  own  consent,  given  by  their 
representatives,  and  grounds  his  pretence  of  the  right  to  tax 
them  entirely  upon  this, — that  they  Avcre  virtually  represented 
in  Parliament."* 

The  claim,  as  a  mere  naked  right,  had  a  better  foundation. 
It  was  an  incident  of  the  right  of  the  British  Government  to 
retain  the  Colonies  as  part  and  parcel  of  the  British  Empire. 
The  expense  of  governing  and  of  protecting  them  Avas  paid  by 
England.  The  external  taxes  had  proved  inadequate  for  the 
purpose.  Since  the  time  of  William  the  Third  it  had  been  a 
maxim  that  America,  like  Ireland,  should  bear  in  whole  or  in 
part  the  cost  of  its  military  establishment.  But  how^  to  compel 
America  to  contribute  to  this  expense,  was  the  question.  The 
practice  long  had  been  to  send  Executive  orders  or  requisi- 
tions ;  but  these  were  liable  to  be  debated  in  twenty  Colonial 
Legislatures,  might  therefore  be  delayed  or  refused,  and  often 
were  refused.  A  necessity  was  felt  for  some  central  poiver,  or 
for  Union.  The  King  had  no  power  to  demand  revenue  from 
America  and  raise  it  by  coercive  measures.  Parliament  alone 
could  do  this,  and  resort  was  had  to  the  power  of  Parliament. 
"  When  New  York  failed  to  make  appropriations  for  the  civil 
service,  a  bill  was  prepared,  to  be  laid  before  Parliament,  giving 
the  usual  revenue.  ...  It  was  settled  then  that  there  must  be 
a  military  establishment  in  America  of  twenty  regiments  ;  that 
after  the  first  year  its  expenses  must  be  defrayed  by  America; 
that  the  American  Colonies  themselves  Avould  never  agree  to 
vote  such  a  revenue,  and  that  Parliament  must  do  it."f 

For  this  purpose  the  poAver  of  Parliament  must  of  necessity 
be  supreme,  as  it  must  for  any  other  act  essential  to  maintain- 
ing the  relation  of  the  Colonies  to  the  mother  country,  for 
otherwise  they  Avould  be  independent.  A  case  might  happen 
in  Avhich  the  exercise  of  such  power  Avould  be  justifiable,  and 
it  is  to  meet  such  cases  that  the  power  exists.  An  act  of  Par- 
liament taxino;  the  Colonies  against  their  consent  Avas  uncon- 

*  5  Bancroft's  History  of  United  States,  281. 
t  5  Bancroft's  History  of  United  States,  154. 


UNION.  123 

stitutional,  but  it  was  not  void.  It  might  violate  precedent, 
laws  and  established  rights,  and  yet  do  this  wisely,  reasonably, 
and  of  necessity.  Therefore  no  act  of  Parliament  can  be  void, 
for  there  must  be  supreme  power  to  answer  a  supreme  need. 

But  an  act  of  Parliament  may  be  unjust  and  oppressive,  and 
may  thus  call  forth  the  natural  right  of  resistance,  which, 
because  it  is  superior  to  all  laws  and  constitutions,  cannot  be 
provided  for  in  any.  Of  this  nature  was  the  attempt  to  tax 
America.  It  violated  ancient  rights,  and  violated  them  un- 
necessarily. It  disregarded  the  ruling  sentiment  of  a  loyal 
people,  and  exacted  slavish  submission  to  arbitrary  Avill,  instead 
of  free  obedience  to  equal  laws.  This  might  suit  Frenchmen 
in  French  colonies,  and  thus  were  French  colonies  governed, 
but  it  did  not  suit  the  genius  of  the  Saxon  race,  who  cannot 
live  under  any  laws  which  they  do  not  themselves  make.  The 
case  presented  all  the  conditions  necessary  to  justify  resist- 
ance, and  to  call  into  being  the  "  right  of  revolution."  The 
grievance  was  real.  The  material  interests  involved,  whether 
great  or  small,  formed  no  part  of  it.  It  Avas  a  burden  on  the 
soul ;  it  was  an  attack  on  the  moral  life  of  the  people,  of  which 
liberty  was  the  essential  element.  There  was  no  hope  of 
redress  by  legal  means,  but  there  was  hope  of  redress  by  resist- 
ance, as  the  event  proved.  All  legal  means,  arguments, 
petition,  remonstrance,  humble  entreaty,  through  long  j^ears, 
were  tried  in  vain.  Slowly  and  sorrowfully  at  length,  but 
steadfastly  and  solemnly,  our  ancestors  took  the  position 
which,  through  other  long  years  of  heroic  war,  they  success- 
fully maintained.  They  determined  to  become  a  nation,  a 
new  nation  of  Englishmen,  and  to  found  a  Government  which 
should  embody  and  preserve  forever  that  noble  liberty  which 
they  had  inherited  from  a  glorious  past. 

The  genius  of  Burke,  the  brightest  star  in  the  constellation 
of  English  statesmen  of  the  day  and  the  only  one  who  could 
think  philosophically,  and  therefore  prophetically,  grasped 
the  case  in  all  its  bearings,  its  causes,  and  its  consequences. 
In  his  speech  on  American  taxation,  delivered  in  the  House 
of  Commons  April  19,  1774,  with  eloquence  which  glows  even 
through  the   imperfect  report  of  it,  he  vindicated  the  rights, 


124  THE    TRIAL     OF    THE     CONSTITUTION. 

depicted  the  Avrongs,  and  foretold  the  future  of  America, 
■whilst  he,  at  the  same  time,  expounded  the  law  ^^•hich  rules  the 
subject,  "vvith  clearness  and  unanswerable  trutli.  "  Again, 
and  again,"  he  says,  ''revert  to  your  old  principles, — seek 
peace  and  insure  it.  Leave  America  if  she  has  taxable  matter 
in  her  to  tax  herself.  I  am  not  here  going  into  the  distinc- 
tions of  rights  or  attempting  to  mark  their  boundaries.  I  do 
not  enter  into  these  metaphysical  distinctions.  I  hate  the 
very  sound  of  them.  Leave  the  Americans  as  they  anciently 
stood,  and  these  distinctions,  born  of  an  unhappy  contest,  Avill 
die  along  with  it.  They  and  we,  and  their  and  our  ancestors, 
have  been  happy  under  that  system.  Be  content  to  bind  the 
Americans  by  laws  of  trade ;  you  have  always  done  it. 
Let  this  be  your  reason  for  binding  thei;-  trade.  Do  not 
burden  them  by  taxes ;  you  were  not  used  to  do  so  from  the 
beginning.  Let  this  be  your  reason  for  not  taxing.  These 
are  the  arguments  of  States  and  Kingdoms.  Leave  the  rest 
to  the  schools  ;  for  there  only  they  may  be  discussed  with 
safety.  But  if  intemperately,  unwisely,  fatally,  you  sophisti- 
cate and  poison  the  very  source  of  Government  by  urging 
subtle  deductions  and  consequences,  odious  to  those  you 
govern,  from  i\\Q  unlimited  and  illimitahh  nature  of  supreme 
sovereignty,  you  will  teach  them,  by  those  means,  to  call  that 
sovereignty  itself  in  question.  If  that  sovereignty  and  their 
freedom  cannot  he  reconciled,  which  will  they  take  ?  They  tvill 
cast  your  sovereignty  in  your  face.  Nobody  will  be  argued 
into  slavery.  Sir,  let  the  gentlemen  on  the  other  side  tell  me 
what  one  character  of  liberty  the  Americans  have,  and  Avhat 
one  brand  of  slavery  they  are  free  from,  if  they  are  bound  in 
their  property  and  industry,  by  all  the  restraints  you  can 
imagine  on  commerce,  and,  at  the  same  time,  made  pack- 
horses  for  every  tax  you  choose  to  impose,  without  the  least 
share  in  granting  them.  When  they  bear  the  burden  of 
unlimited  monopoly,  will  you  bring  them  to  bear  the  burdens 
of  unlimited  revenue  too  ?  The  Englishman  in  America  will 
feel  that  this  is  slavery, — that  it  is  legal  slavery,  Avill  be  no 
compensation  to  his  feelings  or  his  understanding." 

In  the  same  speech  there  is  the  follo^Ying  striking  descrip- 


UNION.  125 

tion  of  the  British  Empire  and  of  its  relations  to  the  central 
Government,  which  is  well  worth  attention,  because  it  states 
not  the  law  only,  but  the  reasons  of  the  law.  When  these 
are  known,  it  is  easy  to  determine  whether  they  be  applicable 
to  new  circumstances.  "I  look,"  said  Mr.  Burke,  "  on  the 
imperial  rights  of  Great  Britain,  and  the  privileges  which  the 
Colonies  ought  to  enjoy  under  those  rights,  to  be  the  most 
reconcilable  things  in  the  world.  The  Parliament  of  Great 
Britain  sits  at  the  head  of  her  extensive  Empire  in  two  capa- 
cities: one,  as  the  local  Legislature  of  this  island,  providing 
for  all  things  at  home,  and  by  no  other  instrument  than  the 
Executive  power.  The  other, — and,  I  think,  her  nobler 
capacity, — is  what  I  call  her  imperial  character,  in  which, 
as  from  the  Throne  of  Heaven,  she  superintends  all  the  se- 
veral inferior  legislatures,  and  guides  and  controls  all  without 
annihilating  any.  As  all  these  provincial  legislatures  are 
only  co-ordinate  to  each  other,  they  ought  all  to  be  subordi- 
nate to  her,  else  they  can  neither  preserve  mutual  peace,  nor 
hope  for  mutual  justice,  nor  effectually  afford  mutual  assis- 
tance. It  is  necessary  to  coerce  the  negligent,  to  restrain  the 
violent,  and  to  aid  the  iveaJe  and  deficient  by  the  overivhelming 
plenitude  of  her  power.  She  is  never  to  intrude  into  the 
place  of  others  v/hilst  they  are  equal  to  the  common  ends  of 
their  institutions.  But,  in  order  to  enable  Parliament  to 
answer  these  ends  of  provident  and  beneficent  superinten- 
dence, her  poivers  must  be  boundless.  The  gentlemen  who 
think  the  powers  of  Parliament  limited,  may  please  to  talk  of 
requisitions.  But  suppose  the  requisitions  are  not  obeyed. 
What !  shall  there  be  no  reserved  power  in  the  Empire  to  sup- 
ply a  deficiency  that  may  weaken,  divide  and  dissipate  the 
whole  ?  We  are  engaged  in  war.  The  Secretary  of  State 
calls  on  the  Colonies  to  contribute.  Some  would  do  it,  I  think 
most  would  furnish  cheerfully  whatever  is  demanded.  One  or 
two,  suppose,  hang  back  and  easing  themselves,  let  the  stress 
of  the  draft  lie  on  the  others.  Surely  it  is  proper  that  some 
authority  might  legally  say,  '  Tax  yourselves  for  the  common 
supply,  or  Parliament  will  do  it  for  you.'  ....  But  then, 
this  ought  to  be  no  ordinary  power,  nor  ever  used  in  the  first 


126  THE     TRIAL     OF    THE     CONSTITUTION. 

instance.  This  is  -what  I  meant,  when  I  have  said  that  I  con- 
sider the  power  of  taxing  in  Parliament,  as  an  instrument  of 
unipire  and  not  as  a  means  of  supply." 

It  is  obvious,  from  this  reasoning,  that  if, — as  above  shown, 
— by  the  law  of  the  union  between  England,  Scotland  and 
Ireland,  Parliament  has  supreme  power  over  that  union,  to 
maintain  or  dissolve  it,  the  power  of  the  parent  country 
over  the  union  of  its  colonies  cannot  be  questioned.  They 
form  a  part  of  the  British  Empire,  and  the  British^Governraent 
must,  of  necessity,  have  absolute  power  over  them  to  enforce 
their  obedience,  to  grant  them  independence,  or  to  dismiss 
them  to  shift  for  themselves,  as  justice  and  expediency  may 
demand.  Should  Canada,  for  example,  rebel,  England  Avould 
unquestionably  have  a  right  to  suppress  the  attempt,  by  mili- 
tary power.  Should  Canada  formally  pray  to  be  allowed  to 
form  a  separate  nation,  the  privilege  could  be  legally  granted, 
and,  probably,  would  be,  if  for  her  benefit, — for  she  is  no 
longer  valuable  as  a  colony, — has  become,  indeed,  rather  a 
burden  than  a  benefit,  in  peace  or  in  war.  But  Canada 
might  become  worse  than  useless, — a  troublesome  and  danger- 
ous appendage  to  the  Empire.  She  might  be  factious,  disaf- 
fected, insubordinate.  A  portion  of  her  people  might  desire 
annexation  to  our  States,  and  thus  become  a  source  of  expen- 
sive war  to  England.  Should  these  things  happen,  no  one 
could  doubt  the  legal  power  of  England  to  get  rid  of  Canada, 
with  or  without  her  consent. 


Such  is  the  British  Union,  whose  morning  drum-beat,  as 
Mr.  Webster  said,  announcing  the  sunrise,  encircles  the  earth 
every  day.  Such  is  the  Government  whose  benign  sway  has 
carried  English  liberty,  law  and  literature  over  the  fairest  por- 
tions of  the  world.  Such  was  the  Government  under  which 
our  fathers  lived  and  which  they  revered  and  loved.  Why, 
then,  did  they  withdraw  from  it  ?  Its  principles  supplied 
local  self-government,  one  necessity  of  their  Saxon  nature. 
They  supplied  a  central  power  for  national  strength  and  pro- 
tection.    Where  was  the  defect?     These  principles  did  not 


UNION.  127 

give  also  a  share  of  control  over  that  central  power.  Whilst 
the  power  was  exercised  with  moderation,  the  defect  was  un- 
noticed, or  was  borne  from  habit,  from  loyal  attachment  and 
because  of  the  benefits  conferred  by  the  Union.  When  the 
power  was  abused,  it  was  resisted  and  cast  off.  The  remedy 
for  this  defect  was  a  legislative  union,  which  had  been  success- 
ful with  Scotland,  which  was  afterwards  successful  with  Ire- 
land, and  for  want  of  which  America  was  lost.  The  grievance 
complained  of  was  not  the  burden  of  taxes,  for  the  colonists 
had  borne  heavier  burdens,  but  the  principle  of  taxation 
without  representation.  The  moment  the  operation  of  this 
principle  was  perceived  by  the  people,  it  caused  a  passionate 
burst  of  opposition  throughout  the  Provinces. 

It  never  was  perceived  and  felt  until  the  Stamp  Act  was 
passed,  Avhich  was  the  first  attempt  to  impose  direct  taxes. 
Indirect  taxes  were  ap2)arently  voluntary,  for  they  were  paid 
in  the  price  of  the  taxed  commodities.  The  seller,  though 
in  reality  a  tax  collector,  visited  no  man's  house  to  demand 
tribute.  To  forbear  to  purchase  was  to  avoid  the  tax.  The 
commercial  regulations  and  the  navigation  acts,  moreover,  as 
Mr.  Burke  said,  in  another  part  of  the  speech  above  quoted, 
were  sanctioned  by  custom.  They  began  with  the  infancy 
and  had  grown  with  the  growth  of  the  Colonies,  which  pros- 
pered under  them,  onerous  as  they  were.  But  direct  taxes 
were  not  only  a  novelty,  but  a  novelty  which  announced  in  a 
way  not  to  be  misunderstood,  a  departure  from  principle,  and 
a  violation  of  well-established  constitutional  right ;  the  right 
of  being  governed,  not  by  a  distant,  independent  power,  but 
by  a  power  representing  the  people. 

Had  the  British  Government  abstained  from  this  abuse  of 
power,  separation  would  have  been  avoided,  as  it  has  been  in 
the  case  of  Canada.  Had  England  granted  to  the  colonists, 
as  she  did  to  Scotland  and  Ireland,  the  privilege  of  sending 
representatives  to  Parliament,  separation  would  have  been 
avoided,  at  least  for  a  time.  But  for  many  reasons,  not  neces- 
sary now  to  discuss,  this  was  difficult,  if  not  impracticable,  and 
was  acknowledged  to  be  so  by  the  Americans  themselves.  Yet 
such  representation  was  the  one  thing  necessary  to  satisfy  the 


128  THE     TRIAL     OF    THE     CONSTITUTION. 

moral  -wants  of  the  people,  and  to  secure  that  freedom  which 
was  their  hirthright,  under  the  ancient  laws  of  their  father- 
land. Of  the  want  of  this  thej  complained,  and  of  that  only, 
and  for  the  sake  of  this  they  fought  and  conquered. 

The  picture,  therefore,  given  hy  Mr.  Burke,  of  the  British 
Union,  is  worthy  attentive  study.  It  is  a  picture,  drawn  by 
the  hand  of  a  master,  of  the  Government  which  our  ancestors 
regarded  with  profound  and  loyal  aifection.  In  their  eyes  it 
had  but  one  defect, — it  did  not  provide  for  their  representation 
in  the  central  power.  Is  it  not  fair  to  suppose,  therefore,  that 
when  tliey  themselves  came  to  construct  a  central  power,  with 
subordinate  dependencies,  this  old,  long-tried,  renowned  and 
venerated  Government  would  be  taken  as  their  model,  except 
in  the  part  they  had  found  defective,  the  only  part  to  whicli 
they  had  ever  objected  ? 

It  was  natural  that  they  should  do  this,  and  therefore  they 
7nust  have  done  it,  and  the  more  we  examine  this  description 
given  by  Mr.  Burke  of  the  British  Union,  the  more  does  it  look 
like  the  American  Union,  if  we  add  the  principle  of  central 
representation,  omitted  in  the  former.  If  we  look  also  to  the 
history  of  both  countries  after  the  separation,  we  shall  find 
that  the  very  same  causes  which  induced  England  to  grant 
representation  to  Ireland,  the  impossibility  of  governing  go- 
vernments, that  is  to  say,  by  means  of  requisitions  directed  to 
independent  legislatures,  instead  of  by  direct  action  on  the 
people,  led  our  ancestors  to  create  both  a  confederacy  and  a 
nation. 


I  have  thus  endeavored  to  show  what  is  the  laAv  of  the 
great  British  Union,  which  is  both  a  confederacy  and  a  nation, 
Avhich  law  was  written  in  the  minds  and  hearts  of  our  fore- 
fathers, when  they  undertook  the  difficult  and  delicate  task  of 
forming  the  American  Union.  We  have  seen  that  by  tliis  law 
both  central  and  local  governments  are  created,  and  that  the 
central  power  is  vested  with  supreme  authority  over  the  fact 
of  Union,  to  preserve  it  or  destroy  it,  as  circumstances  require. 
Let  us  now  ask,  what,  with  this  model  before  them,  our  ances- 


UNION.  129 

tors  actually  did  in  this  respect,  what  was  the  law  they  made 
and  also  what  is  the  natural  organic  law  of  our  Union,  which  law 
we  ourselves  must  make,  if  we  have  it  not  already,  or  perish. 


liTot  only  was  the  idea  of  Union  familiar  to  the  minds  of 
our  ancestors,  because  they  belonged  to  the  confederacy  of  the 
British  Empire,  but  because  from  the  earliest  period  combined 
action  by  means  of  a  Congress  of  delegates  from  the  Provinces 
was  habitual.  This  was  necessary  for  defence  against  the 
French  and  Indians,  whose  attacks  involved  all  in  a  common 
danger,  and  led  to  the  formation  of  tlie  "  United  Colonies  of 
New  England"  in  1643,  and  to  the  General  Congress  of  the 
Colonies  at  New  York  in  1690.  When  the  spirit  of  resistance 
was  roused  by  the  Stamp  Act  of  1765,  Union  was  an  expedient 
already  tried,  though  then  for  the  first  time  without  the  con- 
sent of  the  home  Government,  but  not  in  opposition  to  its 
authority. 

Nevertheless,  it  suggested  to  thoughtful  minds  the  vision  of 
a  future  nation.  The  w'rath  of  the  colonists  waxed  stronger 
with  the  persistence  of  the  British  Government  in  its  plan  of 
taxation;  and  as  the  prospect  of  a  rupture  gradually  assumed 
a  more  and  more  definite  shape,  the  absolute  necessity  for 
Union  became  apparent.  In  1772  the  celebrated  "Committee 
of  Correspondence"  was  organized  by  Samuel  Adams,  of  Bos- 
ton.* They  sent  circular  letters  to  the  Colonies,  urging  the 
importance  of  combined  action  for  the  defence  of  common 
liberty  and  rights.  Province  called  to  province.  The  flames 
of  passion,  kindled  by  the  sense  of  wrong,  were  fed  by  confi- 
dence in  mutual  aid.  This  committee  first  suggested  the  idea 
of  Independence  and  an  American  nation.  An  irresistible  im- 
pulse swayed  the  people.  They  felt  more  than  they  said,  and 
when  they  looked  at  the  magnificent  country  which  was  theirs^ 
were  stirred  by  thoughts  of  what  might  be,  but  which  habits  of 
obedience  and  loyalty  repressed  for  a  time.  They  were  Eng- 
lishmen, and  were  moved  alike  by  the  love  of  liberty  and  the 

*  6  Bancroft's  History  of  United  States,  429. 
9 


130  THE    TRIAL    OF     THE     CONSTITUTION. 

love  of  power.    Liberty  was  theirs  by  right,  and  power  awaited 
only  the  grasp  of  their  rapidly  growing  strength. 

The  Continental  Congress  which  met  in  Philadelphia  in 
1774  was  the  result  of  the  zeal  and  activity  of  this  committee. 
I^ot  yet,  however,  was  the  idea  or  purpose  of  resistance  openly 
avowed.  The  object  of  the  Congress  was  to  obtain  redress 
from  England  and  security  for  the  future,  and  for  these  pur- 
poses to  negotiate  with  the  British  Government.  Two  years 
were  thus  spent  in  fruitless  efforts,  and  then  at  last  followed 
the  decisive  step  of  the  Declaration  of  Independence  on  the 
fourth  of  July,  1776. 

War  had,  however,  already  commenced.  The  Continental 
Congress  was  not  a  Government.  It  was  a  mere  Council  of 
Delegates  from  the  States.  But  a  Government  was  necessary 
to  carry  on  the  war.  This  was  soon  felt,  and  the  result  was 
the  Articles  of  Confederation,  debated  and  agi-eed  to  by  Con- 
gress in  1777,  accepted  by  the  Legislatures  of  tlie  States,  and 
ratified  by  Congress  in  1781.  The  system  thus  created  was 
formed  in  the  midst  of  war.  It  was  really  nothing  more  than 
a  Provisional  Government,  or,  more  properly  speaking,  an  alli- 
ance of  separate  States,  who  suddenly  found  themselves  for 
the  first  time  separate  and  independent,  at  a  moment  when 
united  action  was  necessary  for  the  common  defence.  The 
Confederation  had  none  of  the  attributes  of  a  Government. 
As  its  name  implies,  it  was  a  league  of  sovereignties  who  had 
never  been  sovereign  before.  It  had  no  Legislature,  for  it 
could  not  make  laws ;  it  had  no  Executive,  but  in  its  place  a 
committee  of  one  delegate  from  each  State,  to  act  in  a  very 
limited  sphere  during  the  recess  of  Congress ;  it  had  no  Judi- 
ciary, for  it  did  not  operate  on  individuals  or  affect  private 
rights ;  above  all,  and  for  these  reasons,  it  wanted  power, — 
the  essential  requisite  of  every  Government.  It  addressed  it- 
self, not  to  persons,  but  to  States,  because  it  represented  States, 
and  not  the  people.  It  therefore  could  not  command ;  it  could 
only  recommend  and  request,  and  had  no  means  to  enforce 
compliance. 

Congress  could  not  collect  taxes,  for  this  authority  was  re- 
served to  the  States,  each  of  which  gave  or  withheld  its  quota, 


UNION.  131 

as  its  Legislature  chose.  Congress  might  contract  debts,  but 
it  depended  on  the  Legislatures  of  the  States  whether  they 
should  be  paid.  Even  for  the  purposes  of  the  war,  the  Go- 
vernment had  no  power  to  draft  men,  or  to  create  an  army  or 
a  navy :  these  were  furnished  by  the  several  States.  Congress 
had  no  control  over  the  foreign  relations  of  the  country.  It 
had  no  power  to  regulate  commerce  or  to  enforce  the  observ- 
ance of  treaties. 

It  soon  became  obvious  that  the  Confederation  was  ineffi- 
cient, even  as  a  Provisional  Government,  during  the  war.  Its 
want  of  power  impeded  the  operations  of  the  army.  There 
was  no  authority  to  draw  out  the  resources  of  the  country,  for 
all  supplies  of  men  or  money  were  to  be  granted  or  withheld 
by  the  Legislatures  of  thirteen  different,  jealous,  often  quarrel- 
ling States,  which  even  the  urgent  pressure  of  common  danger 
could  not  always  urge  to  harmonious  action.  These  evils  were 
the  subject  of  frequent  complaint  by  Washington.  In  a  circu- 
lar letter  addressed  to  the  Governors  of  the  States  he  said : 
"  Unless  the  States  will  suffer  Congress  to  exercise  those  pre- 
rogatives they  are  undoubtedly  vested  with  by  the  Constitu- 
tion, everything  must  very  rapidly  tend  to  anarchy  and  confu- 
sion. It  is  indispensable  to  the  happiness  of  the  individual 
States  that  there  should  be  lodged  someAvhere  a  supreme  power 
to  regulate  and  govern  the  concerns  of  the  Confederated  Re- 
public." 

The  glaring  defects  of  a  Government  that  could  not  govern 
had  become  evident  to  all,  and  were  universally  admitted  be- 
fore the  war  was  over.  They  are  thus  summed  up  by  Hamilton 
in  the  fifteenth  number  of  the  Federalist:  "  There  is  scarcely 
anything  that  can  wound  the  pride  or  degrade  the  character 
of  an  independent  people,  which  we  do  not  experience.  Are 
there  engagements  to  which  we  are  held  by  every  tie  respect- 
able among  men  ?  These  are  the  subjects  of  constant  and  un- 
blushing violation.  Do  we  owe  debts  contracted  in  a  time  of 
extreme  peril  for  the  preservation  of  our  political  existence  ? 
These  remain  without  any  proper  or  satisfactory  provision  for 
their  discharge.  Have  we  valuable  territories  and  important 
posts  in  possession  of  a  foreign  power,  which,  by  express  stipu- 


132  THE     TRIAL     OF     THE     C  0  N  S  T  I  T  U  T  I  0  X. 

lation,  ought  long  to  have  been  surrendered  ?  These  are  still 
retained,  to  the  prejudice  of  our  interests  not  less  than  our 
rights.  Are  we  in  a  condition  to  resent  or  repel  the  aggres- 
sion? We  have  neither  troops  nor  treasury  nor  Government. 
...  To  shorten  an  enumeration  of  particulars,  it  may  in  ge- 
neral be  demanded,  what  indication  is  there  of  national  dis- 
order, poverty  and  insignificance,  that  could  befall  a  community 
so  peculiarl}"  blessed  with  natural  advantages  as  we  are,  which 
does  not  form  a  part  of  the  dark  catalogue  of  our  misfortunes?" 

Such  Avas  the  Government  under  which  the  American  people 
found  themselves  when  Independence  was  achieved.  They  had 
cast  off  forever  the  British  central  power,  and  this  was  the 
substitute.  They  no  longer  formed  part  of  the  great  British 
Empire,  and  they  Avere  not  themselves  a  Nation,  but  a  cluster 
of  independent  Nations,  bound  together  by  a  feeble  alliance, — 
the  source,  not  of  strength,  but  of  weakness, — not  of  harmony, 
but  of  discord.  As  Colonies  they  had  been  strong  and  safe, 
because  they  were  protected  by  British  power,  and  at  peace 
with  each  other,  because  governed  by  British  law.  They  had 
withdrawn  themselves  from  the  power  of  England,  and  the 
want  of  it  was  immediately  felt.  Local  authority  they  had, — 
more  than  enough.  But  union  was  essential  to  their  safety 
and  prosperity,  and  union  was  proved  to  be  impossible  without 
a  central  authority  strong  enough  to  govern  the  Union. 

During  the  war  the  minds  of  men  Avere  too  much  excited 
and  absorbed  by  its  events  to  reflect  upon  their  political  condi- 
tion or  the  causes  of  it.  But  when  peace  was  restored,  the 
terrible  reality  of  their  situation  Avas  revealed.  They  had 
fancied  themselves  a  Union,  but  they  discovered  that  they 
Avere  a  number  of  Independent  States,  without  cohesive  force. 
They  had  imagined  themselves  a  Nation,  but  experience  had 
taught  them  that  such  a  thing  as  a  Nation  Avithout  a  National 
Government  does  not  exist  in  nature.  Something  must  be 
done, — but  Avhat,  Avas  the  difificult  question.  The  States  were 
jealous  of  their  sovereignty.  The  people,  just  escaped  from 
the  yoke  of  England,  dreaded  a  central  power,  even  though 
they  might  control  it.  No  one,  hoAvever,  could  deny  the  de- 
fects of  the  Confederation,  or   the  evils  that  had  groAvn  up 


UNION.  133 

under  it.  The  alternative  presented  was,  a  stronger  Govern- 
ment for  the  Union  or  separation,  with  all  its  manifold  dan- 
gers and  calamities. 

Several  abortive  attempts  were  made  to  assemble  conven- 
tions to  amend  the  Articles  of  Confederation,  and  to  grant 
further  powers  to  Congress.  At  length  the  Legislature  of 
Virginia  appointed  delegates,  who  were  authorized  to  meet 
others  chosen  by  the  States,  to  take  into  consideration  the 
condition  of  the  trade  of  the  United  States,  and  to  report  a 
uniform  system  by  which  it  might  be  regulated  for  their  com- 
mon interest.  These  delegates  met  at  Annapolis  on  the  11th 
of  September,  1786.  Only  five  States  were  represented. 
Fortunately  a  master  spirit,  a  man  of  genius,  was  one  of  this 
small  assembly.  Hamilton  saw  that  the  task  imposed  on  the 
statesmen  of  the  country,  if  they  meant  to  save  it,  was  some- 
thing very  different  from  the  regulation  of  its  trade.  The 
delegates,  instead  of  discussing  commercial  questions,  adopted 
a. report  written  by  him,  recommending  the  appointment  of 
commissioners  from  all  the  States,  "  to  meet  at  Philadelphia  in 
the  following  year,  to  take  into  consideration  the  situation  of 
the  United  States,  and  to  devise  such  other  measures  as  shall 
appear  to  them  necessary  to  render  the  Constitution  of  the 
Federal  Government  adequate  to  the  exigencies  of  the  Union.' ^ 
The  proposition  w^as  favorably  received.  Deputies  were  ap- 
pointed by  all  the  States  except  Rhode  Island.  They  met  in 
convention  May  14th,  1787,  and  on  the  25th  of  the  same 
month  were  organized  by  the  appointment  of  Washington  as 
their  President.  The  result  of  their  deliberations  was  our 
present  Constitution. 

Thus  at  length  was  discovered  the  only  path  out  of  danger. 
The  people  had  got  their  wise  men  together,  and  invested 
them  Avith  plenary  power,  to  do  what  no  people  can  do  for 
themselves, — create  a  government.  The  Convention  sat  Avith 
closed  doors,  and  we  have  a  very  imperfect  report  of  the  de- 
bates, the  art  of  phonography  not  then  being  known.  The 
only  authentic  contemporary  account  that  exists  of  the  argu- 
ments and  reasons  which  governed  the  Convention  in  framing 
the  Constitution,  is  contained  in  a  series  of  essays  written  by 


134  THE    TRIAL    OF    THE     CONSTITUTION. 

Alexander  Hamilton,  John  Jay  and  James  Madison,  for  the 
purpose  of  recommending  it  to  the  people.  These  essays  have 
been  collected  in  a  volume,  called  the  Federalist,  and  are 
vjiluahle,  not  only  because  they  expound  with  great  force  and 
clearness  the  principles  of  the  Constitution,  and  are  authority, 
both  legal  and  hietorical,  but  because  they  form  an  admirable 
treatise  on  the  general  principles  of  government.  They  are 
the  work  of  men  of  fine  intellect,  who  combined  the  culture  of 
liberal  study  with  the  experience  of  active  public  life,  during 
a  stormy  period  of  revolution  and  war,  when  the  importance 
of  sound  principles  is  most  clearly  revealed  ;  who  had  seen  two 
governments  tried  and  fail,  and  Avere,  therefore,  instructed  in 
what  was  needed  to  make  another.  These  essays  are  replete 
with  wisdom, — any  one  who  reads  them  now,  will  say,  with  pro- 
phetic wisdom, — and  are  written  with  scholarly  clearness  and 
elegance.  They  are  trustworthy  witnesses  of  the  past,  and  if 
we  could  heed  their  teaching,  would  throw  much  light  on  the 
dark  future  that  lies  before  us. 

I  have  already  quoted  the  Federalist,  to  show  the  defects 
of  the  Confederacy  and  the  mischiefs  it  produced.  I  shall  rely 
on  the  same  authority  to  explain  the  causes  of  those  defects, 
and  the  remedy  applied  to  them,  not  because  other  authority 
is  wanting,  but  because  that  is  the  best,  is  familiar  to  most 
readers,  and  is  sufficient. 

The  Government  of  the  Confederacy  was  inadequate  to  the 
exigencies  of  the  Union,  because  it  was  weak,  and  it  was  weak 
because  it  was  a  league  and  not  a  nation.  "  The  great  and 
radical  vice,"  said  Hamilton,  in  No.  15,  "in  the  construction 
of  the  existing  Confederation,  is  the  principle  of  legislation  for 
States  or  G-overn7nents,  in  their  corporate  or  collective  cajyacitieSy 
and  as  contradistinguished  from  the  individuals  of  whom  they 
consist.  Though  this  principle  does  not  run  through  all  the 
powers  delegated  to  the  Union,  yet  it  pervades  and  governs 
those  on  which  the  efficacy  of  the  rest  depends.  Except  as  to 
the  rule  of  apportionment,  the  United  States  have  an  indefin- 
ite discretion  to  make  requisitions  for  men  and  money,  but 
they  have  no  authority  to  raise  either,  by  regulations  extend- 
ing to  the  individual  citizens.     The  consequence  is,  that  though 


UNION.  135 

in  theory  their  resolutions  concerning  these  objects  are  laws, 
constitutionally  binding  on  the  members  of  the  Union,  yet 
in  practice  they  are  mere  recommendations  which  the  States 
observe  or  disregard  at  their  option.  ...  In  our  case  the 
concurrence  of  thirteen  distinct  sovereign  wills  is  requisite 
under  the  Confederation  to  the  execution  of  every  important 
measure  that  proceeds  from  the  Union.  It  has  happened  as 
was  to  have  been  foreseen, — the  measures  of  the  Union  have 
not  been  executed ;  the  delinquencies  of  the  States  have,  step 
by  step,  matured  themselves  to  an  extreme,  which  has  at 
length  arrested  all  the  wheels  of  Government  and  brought 
them  to  an  awful  stand.  Congress  at  this  time  scarcely 
possess  means  of  keeping  up  the  forms  of  administration,  till 
the  States  can  have  time  to  agree  upon  a  more  substantial 
substitute  for  the  present  shadow  of  a  Federal  Government. 
.  .  .  Each  State,  yielding  to  the  persuasive  voice  of  im- 
mediate interest  or  convenience,  has  successively  withdrawn 
its  support,  till  the  frail  and  tottering  edifice  seems  ready  to 
fall  on  our  heads  and  crush  us  beneath  its  ruins." 

I  might  cite  other  passages  equally  conclusive  as  to  the 
causes  of  the  defects  of  the  Confederacy,  but  shall  only  add 
one  more  from  I^o.  20,  by  Madison.  After  describing  the 
Amphictyonic  and  AchtTean  leagues  of  antiquity,  which,  he 
says,  bore  a  "  very  instructive  analogy  "  to  the  American  Con- 
federacy, and  the  Germanic  Association  and  that  of  the  United 
Netherlands  and  the  Polish  Constitution,  all  of  which  were 
marked  by  "  imbecility  in  the  government ;  discord  among 
the  provinces  ;  foreign  influence  and  indignities  ;  a  precarious 
existence  in  peace  and  peculiar  calamities  from  war," — he 
thus  sums  up  the  causes  of  the  failure  of  all.  "I  make  no 
apology  for  having  dwelt  so  long  upon  the  contemplation  of 
these  federal  precedents.  Experience  is  the  oracle  of  truth, 
and  where  its  responses  are  unequivocal,  they  ought  to  be 
conclusive  and  sacred.  The  important  truth  which  it  unequivo- 
cally pronounces  in  the  present  case  is,  that  a  sovereignty 
over  sovereigns,  a  government  over  governments,  a  legis- 
lation for  communities  as  contradistinguished  from  individuals, 
as  it  is  a  solecism  in  theory,  so  in  practice  it  is  subversive  of 


136  THE    TRIAL     OF    THE    CONSTITUTION. 

the  order  and  end  of  civil  polity,  by  substituting  violence  in 
the  place  of  laic,  or  the  destructive  coercion  of  the  sword  in  the 
place  of  the  mild  and  salutary  coercion  of  the  magistracy." 

Such  were  the  defects  of  the  Confederation  and  the  causes  of 
them.  What  was  the  remedy  ?  Obviously  to  create  a  real 
Government,  that  is  to  say,  a  Government  which  could  com- 
mand and  not  be  obliged  to  request,  which  could  act  directly 
by  means  of  its  own  laws  and  courts  and  executive  officers, 
upon  persons  and  things  and  not  by  requisition  upon  inde- 
pendent States.  "  If  we  still  adhere  to  the  design  of  a  National 
Government,"  said  Hamilton  in  No.  15  of  the  Federalist,  "or 
which  is  the  same  thing,  of  a  superintending  power,  under  the 
direction  of  a  common  council,  we  must  resolve  to  incorporate 
in  our  plan  those  ingredients  which  may  be  considered  as  form- 
ing the  characteristic  difference  between  a  league  and  a  govern- 
ment ;  we  must  extend  the  authority  of  the  Union  to  the  per- 
sons of  the  citizens, — the  only  proper  objects  of  Government. 
...  In  an  association  where  the  general  authority  is  con- 
fined to  the  collective  bodies  of  the  communities  that  compose 
it,  every  breach  of  the  laws  must  involve  a  state  of  war  and 
military  execution  must  become  the  only  instrument  of  civil 
obedience.  Such  a  state  of  things  can  certainly  not  deserve 
the  name  of  Government,  nor  would  any  prudent  man  choose 
to  commit  his  happiness  to  it."  Again  in  No.  21.  "  The 
next  most  palpable  defect  of  the  existing  Constitution  is  the 
total  want  of  sanction  to  its  laws.  The  United  States  as  now 
composed  have  no  power  to  exact  obedience  or  punish  diso- 
bedience. .  .  .  There  is  no  express  delegation  of  authority 
to  use  force  against  delinquent  members,  and  if  such  a  right 
should  be  ascribed  to  the  Federal  head,  as  resulting  from  the 
nature  of  the  social  compact  between  the  States,  it  must  be  by 
inference  and  construction  in  the  face  of  that  part  of  the 
second  article  in  Avhich  it  is  declared,  '  that  each  State  shall 
retain  every  power,  jurisdiction  and  right  not  expressly  dele- 
gated to  the  United  States  in  Congress  assembled.'  .  .  . 
If  we  are  unwilling  to  impair  the  force  of  this  applauded 
passage,  we  shall  be  obliged  to  conclude,  that  the  United 
States  afford  the  extraordinary  spectacle  of   a  Government 


UNION.  137 

destitute  even  of  the  shadow  of  constitutional  power  to  en- 
force the  execution  of  its  own  laws." 

These  extracts  might  be  greatly  extended.  They  all  lead 
to  one  conclusion,  that  the  Confederation  was  a  failure  because 
it  was  not  a  nation,  and  that  to  avoid  the  impending  dangers  of 
separation,  a  Government  must  be  formed  with  powers  "  ade- 
quate to  the  exigencies  of  the  Union."  "  These  powers,"  he 
says  in  No.  23,  "ought  to  exist  ivithout  limitation,  because  it 
is  impossible  to  foresee  or  to  define  the  extent  and  variety  of 
national  exigencies,  and  the  correspondent  extent  and  variety 
of  the  means  which  may  be  necessary  to  satisfy  them.  The 
circumstances  that  endanger  the  safety  of  nations  are  infinite  ; 
for  this  reason  no  constitutional  shacJcles  can  wisely  l)e  im- 
posed on  the  power  to  which  the  care  of  it  is  committed." 

Let  us  now  compare  these  passages  with  the  picture  drawn 
by  Burke  of  the  British  Union  and  the  power  of  Parliament 
over  it,  given  in  the  extract  from  his  speech  already  quoted. 
Does  he  not  point  to  the  same  defects  and  the  same  causes  of 
them  and  the  same  remedies  that  are  indicated  by  Madison 
and  Hamilton.  When  Burke  says,  "  Gentlemen  who  think 
the  powers  of  Parliament  limited,  may  please  themselves  to 
talk  of  requisitions.  But  suppose  the  requisitions  are  not 
obeyed.  .  .  .  Suppose  one  or  two  hang  back  and  easing 
themselves,  let  the  stress  of  the  draft  lie  on  the  others  ?"  Is 
not  that  precisely  what  Hamilton  complained  of  in  the  con- 
duct of  the  States  under  the  Confederation  ?  And  what  is  the 
remedy  ?  Hamilton  and  Burke  proposed  the  same.  "  Surely 
it  is  proper,"  says  the  latter,  "  that  some  authority  might 
legally  say,  '  Tax  yourselves  for  the  common  supply,  or  Par- 
liament will  do  it  for  you.'  "  "  The  Government  of  the 
Union,"  says  Hamilton,  "  must  carry  its  agency  to  the  per- 
sons of  the  citizens.  It  must  stand  in  aid  of  no  intermediate 
legislation,  but  must  itself  be  empowered  to  employ  the  arm  of 
the  ordinary  magistrate  to  execute  its  own  resolutions.  The 
majesty  of  the  national  authority  must  be  manifested  through 
the  medium  of  its  courts  of  justice.  The  Government  of  the 
Union,  like  that  of  each  State,  must  be  able  to  address  itself 
immediately  to  the  hopes  and  fears  of  individuals."     (No.  16.) 


138  THE    TRIAL    OF    THE    CONSTITUTION. 

And  when  he  afterwards,  as  already  quoted,  decLared  that 
for  the  preservation  of  the  Union  and  the  safety  of  the  na- 
tion, the  powers  of  the  National  Government  ought  to  be 
without  limitation,  and  that  no  constitutional  shacJcles  can 
wisely  be  imposed  on  them,  does  he  say  less  than  Mr.  Burke 
did,  when  speaking  of  the  necessary  omnipotence  of  Govern- 
ment in  its  imperial  and  conservative  character,  in  relation  to 
all  parts  of  the  Empire,  he  said  that  Parliament  "  super- 
intends all  the  several  inferior  Legislatures,  and  guides  and 
controls  them  Avithout  annihilating  any  ?  As  they  are  all  co- 
ordinate to  each  other,  they  ought  all  to  be  subordinate  to  her, 
else  they  can  neither  preserve  mutual  peace,  nor  hope  for  mu- 
tual justice,  nor  eflfectually  afibrd  mutual  assistance.  .  .  . 
And  in  order  to  enable  Parliament  to  answer  all  these  ends  of 
provident  and  beneficent  superintendence,  her  powers  must 
be  boundless." 


If  the  writers  of  the  Federalist,  therefore,  are  authority  on 
this  subject, — and  two  of  them  sat  in  the  Convention  that  made 
the  Constitution, — our  General  Government  is  invested  with 
the  same  power  over  the  fact  of  Union,  to  preserve  it  or  to  dis- 
solve it,  that  is  possessed  by  an  English  Parliament.  In  its 
relation  to  the  States,  the  General  Government  is  placed  in 
the  same  position  that  the  British  Government  held  to  the 
Colonies,  with  this  difference,  that  the  people  of  the  States  are 
represented  in  the  Federal  Government,  whereas  the  Colonies 
Avere  not  represented  in  Parliament,  the  only  grievance  of 
which  tliey  complained.  This  defect  was  stated  with  great 
force  by  Mr.  Burke,  in  his  speech  on  "  Conciliation  with 
America,"  of  March  22,  1775,  and  he  lamented  as  impracti- 
cable, because  of  the  intervening  ocean,  tlie  application  of  the 
same  remedy,  legislative  union,  which  had  been  successful  in 
the  case  of  Wales  and  the  counties  palatine  of  Chester  and 
Durham.  These  had  always  been  rebellious  and  intractable 
until  they  Avere  allowed  to  send  members  to  Parliament,  and 
thenceforth  Avcrc  loyal  and  tranquil,   thus  demonstrating,  as 


UNION.  139 

he  said,  ''that  freedom,  and  not  servitude,  is  the  cure  for 
anarchy." 

The  union  between  England  and  Scotland  is  another  example 
of  similar  success.  It  was  not  cited  by  Mr.  Burke  on  that 
occasion,  because  he  was  speaking  of  the  government  by  Par- 
liament of  dependent  States,  and  Scotland  never  was  depen- 
dent, but  the  case  was  cited  by  Mr.  Jay  in  the  Federalist,  No. 
5,  as  an  example  worthy  our  imitation.  I  have  already 
pointed  out  the  close  analogy  in  all  essential  principles,  and 
also  the  difference  between  the  Scotch  and  English  Act  of 
Union  and  our  Constitution,  and  Ave  now  see,  in  the  relation 
of  the  Colonies  to  the  parent  country,  the  origin  of  the  diifer- 
ence,  which  consists  in  the  separate  government  of  the  States. 
When  Scotland  sent  members  to  the  English  Parliament,  she 
ceased  to  have  a  Parliament  of  her  own,  because  it  was  no 
longer  necessary,  one  legislature  being  sufficient  for  a  country 
of  such  limited  size.  Had  it  been  deemed  practicable  for 
America  to  send  members  to  Parliament,  the  Colonies  would 
have  retained  their  local  governments,  because  the  extent  of 
the  country  and  its  distance  from  England  would  have  ren- 
dered legislation  for  it  impossible.  Our  ancestors  thus  had 
two  models  before  them,  and  they  combined  both  in  their 
scheme  of  Government, — an  incorporate  legislative  union  for 
all  general  purposes,  and  separate  State  governments  for  all 
local  purposes.  They  intended  to  give  the  General  Govern- 
ment powers  "adequate  to  the  exigencies  of  the  Union,"  for 
these  were  the  words  of  the  original  resolution  of  the  Com- 
missioners who  met  at  Annapolis,  and  of  the  State  Legisla- 
tures when  they  sent  delegates  to  the  Convention.  "  Powers 
adequate  to  the  exigencies  of  the  Union,"  mean,  as  explained 
by  the  Federalist,  supreme  authority  over  it. 

The  defect  of  the  Confederacy  was  that  it  was  a  league  of. 
independent  States.  The  object  of  the  Constitution  was  to 
create  a  nation.  For  this  purpose,  legislative,  executive  and 
judicial  power  was  provided,  to  act  directly  upon  individuals^ 
and  it  was  declared  that  the  Constitution  and  the  laws  made 
in  pursuance  thereof,  should  be  the  "  supreme  Imv  of  the  land, 
anything  in  the  constitution  or  laws  of  any  State  to  the  con- 


140  THE     TRIAL     OF     THE    CONSTITUTION. 

trary  notwithstanding."  For  all  purposes,  therefore,  within 
the  jurisdiction  of  the  General  Government,  the  States  have 
no  existence.  The  Government  acts  directly  upon  the  people, 
and  the  people  are  the  nation. 

The  delegates  to  the  Convention  that  made  the  Constitution 
were  chosen  by  the  Legislatures  of  the  States ;  but  the  Consti- 
tution was  accepted  and  ratified,*  not  by  those  Legislatures,  but 
by  conventions  chosen  by  the  people  for  the  purpose.  As  soon 
as  it  was  ratified,  the  States  under  the  old  Confederacy  ceased 
to  exist.  They  were  annihilated  by  the  express  terms  of  the 
compact.  Other  States  of  a  different  character  were  created. 
Another  central  Government  of  a  diff"erent  character  was  also 
created.  Il^othing  remained  of  the  old  Confederacy,  or  of  the 
States  which  composed  it.  Upon  the  new  States  various  re- 
straints were  imposed  which  were  not  recommendations,  but 
commands ;  for  at  the  same  time  a  Government  was  provided 
with  power  to  act  upon  individuals  so  as  to  secure  obedience. 
What  remained  to  the  States  ?  All  the  powers  not  impliedh/ 
granted  to  the  General  Government.  This  will  be  seen  by  a 
comparison  of  clauses  already  quoted, — one  from  the  Articles 
of  the  Confederacy,  the  other  from  the  Constitution.  The 
former  declares  (Art.  2)  that  "  each  State  retains  its  sove- 
reignty,  freedom,  and  independence,  and  every  power,  jurisdic- 
tion, and  right,  which  is  not  by  this  Confederation  expressly 
delegated  to  the  United  States  in  Congress  assembled."  !N^o 
provision  of  this  sort  was  contained  in  the  Constitution  as 
made  by  the  Convention.  The  chief  object  of  the  new  system 
was  to  limit  and  modify  the  sovereignt}^  and  independence  of 
the  States,  which  had  been  the  cause  of  all  the  evils  that  made 
a  new  system  necessary,  and  to  introduce  a  supreme  power 
strong  enough  to  control  the  States.  But  then,  as  since,  the 
people  were  attached  to  their  local  governments,  and  dreaded 
central  autliority.  These  feelings  caused  the  failure  of  the 
Confederacy,  almost  prevented  the  formation  of  the  Union 
ttnder  the  Constitution,  have  from  time  to  time  threatened  its 
existence,  and,  finally,  have  destroyed  it, — whether  beyond 
hope  of  restoration  depends  oii  the  chances  of  war.  To  satisfy 
such  jealous  fears,  an  amendment  Avas  added  in  these  words : 


UNION.  141 

"  The  poAvers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  peojyle." 

The  difference  between  the  language  of  this  article  and  that 
of  the  Confederation  marks  clearly  the  change  that  had  been 
made  in  the  Government,  l^ot  a  word  is  said  in  the  former 
about  the  "sovereignty  and  independence"  of  the  States:  the 
reserved  powers  are  not  those  of  the  States  only,  but  of  the 
people  also ;  and  when  defining  the  authority  delegated  to  the 
General  Government  and  prohibited  to  the  States,  the  word 
"  expressly"  is  omitted.  That  it  was  intentionally  omitted  is 
proved  by  the  fact  that  the  conventions  of  Massachusetts,  New 
Hampshire,  and  South  Carolina,  recommended  an  adherence 
to  the  phraseology  of  the  Articles  of  the  Confederation.* 

The  tenth  article  of  the  Amendments,  indeed,  like  the  second 
article  of  the  Confederation,  Avas  merely  declaratory.  The  Con- 
federation toas  a  Government  of  sovereign  and  independent 
States,  Avhich  had  formed  an  alliance  for  general  purposes. 
The  new  Union  was  not  a  government  of  States  at  all,  but  of 
a  Nation, — of  a  people, — w'ith  powers  acting,  not  upon  States, 
but  upon  individuals.  It  was  a  combination  of  central  and 
local  power,  each  supreme  in  its  sphere,  and  was,  therefore,  as 
Mr,  Madison  described  it,  of  a  composite  character, — partly 
Federal  and  partly  National. f  But  the  National  character 
necessarily  predominated,  because  the  whole  is  greater  and 
more  important  than  any  of  its  parts.  The  power  of  the  whole 
must  be,  to  a  great  extent,  incapable  of  definition  or  restric- 
tion, because  it  is  impossible  to  foresee  all  the  cases  which  may 
require  its  exercise.  Implied  power  was  therefore  given  to 
the  central  Government,  not  merely  by  the  language  of  the 
tenth  article  of  the  Amendments  purposely  modifying  the  se- 
cond article  of  the  Confederation,  but  by  a  clause  in  the  Con- 
stitution expressly  granting  that  general  authority  which  every 
Government  must  possess  for  its  own  preservation.  By  the 
eighth  section  of  Article  I,  the  powers  of  Congress,  which  are 

*  Towle's  History  and  Analysis  of  the  Constitution,  240. 
t  Federalist,  No.  39. 


142  THE    TRIAL    OF    THE    CONSTITUTION. 

ordinary  legislative  powers,  are  enumerated ;  and  then,  to  pro- 
vide for  possible  omissions  and  miforeseen  cases,  this  clause  is 
added :  "  Congress  shall  have  power  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers  and  all  other  pavers  vested  by  this  Constitu- 
tion in  the  Government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof." 

Now,  what  is  the  meaning  of  the  words  "  all  other  powers 
vested  in  the  Government  oi  the  United  States?"  They  do 
not  mean  those  already  enumerated  as  belonging  to  Congress, 
but  something  in  addition  thereto,  for  they  are  classed  as  "  the 
foregoing  powers."  They  do  not  mean  the  authority  conferred 
upon  the  Executive  and  Judiciary,  for  that  is  included  in  the 
phrase  "any  department  or  officer  thereof."  Read  by  the 
light  of  history  and  the  guiding  expositions  of  the  Federalist, 
Avritten  by  the  ablest  of  the  makers  of  the  Constitution,  these 
words,  "other  powers  of  the  Government,"  Avhich  was  created 
to  found  and  preserve  the  Union,  mean,  that  the  Government, 
considered  as  a  whole,  must  possess  all  powers,  whether  enu- 
merated in  the  Constitution  or  not,  "adequate  to  the  exigen- 
cies of  the  Union."  And  what  are  these  powers,  thus  con- 
ferred in  general  terms,  beyond  those  expressly  mentioned  ? 
Are  they  not,  in  their  nature,  as  Hamilton  described  them, ' 
"illimitable,"  "boundless," — on  which  "no  constitutional 
shackles  can  be  wisely  imposed?"  Do  they  not  constitute 
that  "imperial  character"  described  by  Burke  which  must  be- 
long to  every  central  government  for  its  own  preservation  ? 

Why,  then,  it  may  be  objected,  if  implied  power  so  ample 
was  conferred  by  the  clauses  quoted  above,  was  the  Fifth  Ar- 
ticle introduced,  providing  a  process  for  amending  the  Consti- 
tution ? 

I  have  endeavored  to  show,  in  the  preceding  chapter,  that 
power  for  this  purpose  must  be  lodged  somewhere,  because  the 
Constitution  must  be  altered  to  suit  the  Avants  of  the  people 
and  to  remedy  defects  in  it  revealed  by  time,  or  it  must  be  de- 
stroyed ;  that  the  mode  prescribed  by  the  Fifth  Article  is  so 
intricate  and  difficult  of  application  that  it  can  rarely  be  em- 
ployed for  the  purpose,  and  never  on  a  sudden  emergency; 


UNION.  143 

and,  therefore^  that  the  power  must,  when  necessity  requires, 
be  exercised  by  Congress  with  no  other  restraint  than  the  Avill 
of  the  people,  expressed  at  the  elections. 

These  are  deductions  from  general  principles,  applicable  to 
all  governments,  and  an  examination  of  the  history  of  the  Con- 
stitution, as  well  as  of  its  provisions,  leads  to  the  same  conclu- 
sion, and  it  is  satisfactory  to  find  the  results  of  abstract 
reasoning  borne  out  by  facts. 

We  have  seen  that  the  defects  of  the  Confederacy  Avere 
caused  by  want  of  power  in  the  Government  to  make  and 
execute  laws,  and  that  therefore  the  States  were  totterins:  on 
the  verge  of  the  ruin  threatened  by  disunion.  We  have  seen 
also,  that  in  order  to  form  "a  more  perfect  Union,"  our  Con- 
stitution created  a  National  Government,  with  powers  expressed 
and  implied,  deemed  adequate  for  the  purpose,  and  very  differ- 
ent from  those  of  the  Confederacy.  There  can  be  no  better 
guide  to  the  meaning  of  the  Convention  than  the  alterations 
they  made  in  the  Articles  of  Confederation,  which  they  in 
part  adopted.  Those  articles  also  had  a  clause  providing  for 
amendments.  It  was  in  these  words :  "  The  Articles  of  this 
Confederation  shall  be  inviolably  observed  by  every  State,  and 
the  Union  shall  be  perpetual ;  nor  shall  any  alteration  at  any 
time  hereafter  be  made  in  any  of  them,  unless  such  alteration 
be  agreed  to  in  a  Congress  of  the  United  States,  and  be  after- 
wards confirmed  by  the  Legislature  of  every  State."  We  here 
see  it  expressly  declared,  that  the  articles  could  be  altered 
only  in  the  prescribed  manner.  That  they  were  not  altered 
in  that  manner,  but  abolished  altogether  in  quite  a  different 
manner,  is  a  significant  fact  to  prove  the  uselessness  and  danger 
of  such  restrictions.  No  such  barrier  is  erected  by  the  Fifth 
Article  of  the  Constitution.  The  words  are  :  "  Congress, 
whenever  two-thirds  of  both  Houses  shall  deem  it  necessary, 
shall  propose  amendments,"  &c.  It  does  not  say  that  no 
amendments  shall  be  made,  imless  in  the  appointed  manner. 
In  this  respect  it  differs,  and  we  must  suppose  intentionally, 
from  the  similar  provision  in  the  Articles  of  the  Confederation. 
And  why  does  it  differ  ?  For  the  same  reason,  that  the  clause 
already  quoted  in  reference  to  powers  reserved  to  the  States 


144  THE     TRIAL     OF     THE     CONSTITUTION. 

and  the  people,  differs  from  a  similar  clause  in  the  same  arti- 
cles ;  for  the  same  reason,  that  after  enumerating  the  powers 
granted  to  the  Legislature,  a  clause  is  added,  giving  general 
powers,  lest  those  defined  might  prove  insufficient ;  and  this 
reason  was  that  the  Convention  intended  to  make  a  strong 
government  instead  of  a  weak  one,  a  nation  instead  of  a  loose 
league  of  States. 

It  is  a  rule  for  the  interpretation  of  any  instrument,  that 
all  parts  of  it  should  he  allowed  some  meatiing,  and  he  so  con- 
strued if  possihle  as  to  make  it  a  harmonious  whole.  The 
Constitution  was  made  with  great  care.  Every  clause  in  it 
was  deliherately  considered,  and  no  part,  therefore,  should  by 
us  be  lightly  disregarded.  Every  article  was  intended  to  bear 
a  logical  relation  to  all  the  others.  Considered,  therefore, 
with  reference  to  the  clauses  already  quoted,  and  in  connection 
with  the  article  of  Confederation  above'  mentioned,  what  does 
this  Fifth  Article  mean  ?  Does  it  mean  that  no  amendments 
shall  be  made  unless  in  the  appointed  manner  ?  This  cannot 
be  the  meaning  for  three  reasons  :  first,  it  docs  not  say  so,  and 
a  matter  so  important  would  have  been  expressly  stated. 
Secondly,  the  similar  article  in  the  Articles  of  Confedera- 
tion does  say  so,  and  the  difference  proves  an  intention  to  differ, 
because  the  commission  given  to  the  Convention  was  to  alter 
and  amend  those  articles.*  Third,  such  a  restriction  would 
be  inconsistent  with  the  ir  .plied  powers  granted  in  the  clauses 
already  referred  to. 

We  must,  therefore,  understand  the  Fifth  Article,  as  pro- 
viding one  mode  by  which  amendments  may  be  made,  not  as 
excluding  others.  It  would  be  better  to  adopt  that  mode  if 
possible,  but  should  necessity  require  it,  the  Government  is 
clothed  by  the  Constitution  with  power  adequate  to  any  emer- 
gency. The  Fifth  Article  is  adapted  to  quiet  times  and  peace- 
ful discussions,  and  to  great  organic  changes  in  the  Govern- 
ment, Avhich  should  be  made  always  with  deliberation  and 
forethought.  Should  the  Government  overstep  the  limits  im- 
posed by  the  Constitution,  under  the  stress  of  circumstances 

*  Federalist,  No.  40. 


UNION.  145 

which  made  it  impossible  to  call  into  action  the  machinery  of 
the  Fifth  Article,  such  an  act  would  be  either  a  temporary  in- 
fringement or  a  permanent  change  in  the  law.  If  the  former, 
a  resort  to  the  process  of  amendment  would  be  unnecessary ; 
if  the  latter,  it  certainly  would  be  desirable,  in  order  to  ratify 
the  change  in  the  most  solemn  and  formal  manner  possible. 
In  neither  case  would  the  act  of  the  Government  be  void,  for 
its  implied  powers  cover  such  cases.  But  should  such  action 
introduce  organic  change  it  might,  nevertheless,  be  impossi- 
ble or  inexpedient  to  resort  to  the  means  prescribed  in  the  Fifth 
Article  to  ratify  the  change,  although  the  people  might  accept 
and  approve  it.  Must  we  therefore  say  that  the  Constitution 
would  be  violated  ?  Would  it  not  be  wiser  to  say,  that  one  of 
its  powers  or  instruments  was  not  on  that  occasion  employed  ? 
The  case  had  not  arisen  when  the  mandatory  part  of  the  arti- 
cle could  take  effect.  l!«[either  two-thirds  of  Congress,  nor  the 
Legislatures  of  two-thirds  of  the  States,  had  proposed  amend- 
ments. When  this  happens,  Congress  is  directed  to  act  in  the 
manner  prescribed.  But  suppose  it  does  not  and  cannot 
happen.  Has  the  Government  for  that  reason  no  power  to 
save  the  Union  by  preserving  the  whole  of  its  territory,  or 
parting  with  a  portion  of  it,  or  coercing  the  States ;  no  power 
to  maintain  the  authority  of  the  laws  or  the  honor  of  the  flag  ? 
Th«  Fifth  Article  does  not  say  so.  No  part  of  the  Constitution 
says  so.  On  the  contrary,  the  Constitution  itself,  its  declared 
purpose,  its  English  models,  its  inherited  principles,  the  opinion 
of  its  ablest  founders  and  contemporary  advocates,  and  the 
eternal,  immutable  laws  of  nature,  on  which  all  governments 
rest,  say,  that  the  Government  of  the  Union  has  and  must  have 
unlimited  power  to  preserve  the  Union  and  itself,  through  a 
future  whose  exigencies  can  neither  be  limited  nor  defined. 


The  Act  of  Union  between  England  and  Scotland  has  been 
already  referred  to  in  this  chapter  as  the  model  after  which 
our  own  was  in  part  planned,  and  the  authority  of  Blackstone 
and  of  a  note  to  his  text  was  quoted  to  show  the  British  law. 

10 


146  THE    TRIAL    or    THE     CONSTITUTION. 

The  "learned  prelate"  mentioned  in  that  note  was  Bishop 
Warburton,  and  it  will  not  be  uninstructive  to  introduce  here 
at  length  his  remarks  on  the  nature  of  an  incorporate  Union, 
for  they  state  clearly  the  philosophical  principles  on  which  it 
must  be  founded. 

"  As  in  these  incorporate  Unions  it  commonly  happens  that 
the  fundamental  articles  are  declai'ed  by  the  contracting  par- 
ties to  be  unalterable,  it  hath  become  a  question,  whether  the 
new  sovereignty  can  alter  such  articles  without  dissolving  the 
Union.  The  difficulty  seems  to  arise  from  the  very  nature  of 
the  Convention.  Two  independent  States  unite  into  one,  on 
certain  conditions,  declared  by  the  contracting  parties  to  be 
unalterable.  When  these  two  States  are  equal,  a  new  one 
arises  from  their  incorporation  composed  of  two ;  Avhen  unequal, 
the  less  is  melted  down  into  the  more  powerful :  as  in  this  latter 
case  one  only  of  the  contracting  parties  now  subsists  ;  so  in 
the  other  neither  of  them.  But  gOod  faith  requires  that  all 
contracts  shall  remain  in  force  till  dissolved  by  the  mutual 
consent  of  the  contracting  parties  themselves ;  but  here  the 
contracting  parties  ai'e  no  longer  in  being,  so  that  these  articles 
of  Union  would  seem  to  be  perpetual,  though  that  condition 
had  not  been  expressly  stipulated.  On  the  other  hand,  the 
incessant  flux  of  human  things  necessitates  society  in  the  course 
of  time  to  make  changes  in  the  most  fundamental  parts  of  the 
Constitution.  This  is  the  difficulty,  which  seems  not  to  be  well 
solved,  by  only  recurring  to  the  common  power  of  the  sove- 
reignty in  repealing  and  changing  laws,  whose  very  title  indeed 
shows  the  absurdity  of  an  irrevocable  law,  as  such  law  would 
tend  to  destroy  the  very  poAver  that  puts  it  in  force ;  for  the 
reason  of  this  act  of  power  is  founded  on  the  supposition,  that 
the  laws  revoked  by  the  sovereign  were  of  the  sovei'eigns  en- 
acting, which  is  not  the  fiict  in  the  case  before  us.  For  the 
articles  of  Union  were  before  the  incorporation,  had  for  their 
author  poAvers  diiferent  from  Avhat  are  noAv  left  for  their  abro- 
gation,— one  or  both  the  contracting  parties  being  no  longer 
existent. 

"  To  justify  any  alteration,  therefore,  we  must  have  re- 
course to  a  higher  principle,  Avhich  is  not  the  right  of  this  or 


UNION.  147 

that  sovereign,  hut  of  society  itself  as  such.  Contracts  be- 
tween independent  States  are  of  the  same  nature  as  those 
between  individuals.  Now  a  number  of  individuals,  let  it  be 
three  hundred  or  three  hundred  thousand,  agree  in  a  state  of 
nature  to  form  themselves  into  a  civil  society.  The  first  con- 
vention (or  contract)  by  which  the  form  of  government  is 
agreed  on,  is  between  individuals,  where  the  consent  of  every 
one  is  necessrry  to  make  him  subject  to  it,  and  this  form  they 
declare  to  be  unalterable,  as  the  only  one  they  are  willing  to 
exchange  for  their  natural  liberty.  After  this  follows  the 
second  convention,  in  which  protection  and  allegiance  are  mu- 
tually promised  by  sovereign  and  people,  whereby  the  con- 
tracting parties  in  the  first  became  annihilated,  and  a  new 
factitious  person  is  produced ;  as  appears  from  hence,  that  in 
the  first  convention  the  consent  of  every  one  is  necessary  to 
conclude  him,  in  the  second  the  majority  is  sufficient.  Now, 
who  ever  doubted  that  this  new-created  body  had  a  right  to 
alter  the  form  of  government  ?  For  the  necessity  arising 
from  the  nature  of  things  requiring  an  alteration,  'and  the 
contracting  parties  being  no  longer  existent,  their  survivor 
must  needs  be  deemed  their  substitute  on  whom  all  their  power 
is  devolved."* 

Let  us  apply  these  truths, — for  such  they  are, — to  our 
Union.  The  contracting  parties  were  the  States,  equals,  be- 
cause each  was  sovereign  and  independent.  By  agreement, 
the  consent  of  nine  instead  of  all  was  made  necessary  to  the 
completion  of  the  contract.  The  object  of  the  contract  was 
to  form  a  new  Government,  in  which  they  were  to  lose  their 
old  and  assume  another  nature.  When,  therefore,  that  Go- 
vernment was  made,  the  old  Confederacy  and  the  States  that 
composed  it  ceased  to  exist.  Those  States  had  absolute  power 
to  create  any  form  of  government  they  chose.  They  are  no 
longer  in  being.  What,  then,  has  become  of  their  power  ? 
It  belongs  to  their  survivor,  which  must  be  their  substitute, 
for  any  act  of  supreme  sovereignty  that  necessity  may  re- 
quire.    They  had  the  right  to  make  of  the  Government  what 

*  Warburton's  Alliance  in  Church  and  State. 


148  THE    TRIAL    OF    THE    CONSTITUTION. 

tliey  pleased ;  tlieir  substitute  has  the  same  right.  True,  it 
may  be  said,  in  the  manner  prescribed  by  the  compact.  But 
such  a  condition  woukl  be  a  limit  on  the  power  of  the  substi- 
tute, •whereas  the  power  of  the  original  parties  was  unlimited. 
These  parties  are  no  longer  in  being.  Society,  as  such, 
that  is  to  say,  the  people,  the  nation,  only  exists,  and  the 
nation  must  have  supreme  power  over  its  Government. 

What  then  becomes  of  the  rights  of  the  States,  may  be 
asked,  if  unlimited  power  is  thus  ascribed  to  the  General  Go- 
vernment ?  The  old  States  of  the  Confederacy  were  annihi- 
lated, it  is  true,  by  the  adoption  of  the  Constitution,  but  new 
ones  were  by  it  created,  which,  if  not  sovereign  and  indepen- 
dent, have  absolute  authority  within  their  sphere.  They  form 
an  essential  part  of  our  system,  which  is  both  federal  and  na- 
tional, and  are  necessary  to  satisfy  the  desire  for  local  self- 
government,  which  is  a  ruling  element  of  the  Saxon  nature. 

The  answer  is  that  the  central  power,  how  great  soever  it 
may  be,  is  under  the  control  of  the  people,  and  represents 
their  opinions  and  will.  They  act  upon  it  by  means  of  the 
elections,  periodically,  at  short  intervals,  either  as  States  or  as 
individuals.  Every  four  years  the  people  choose  a  President ; 
every  two  years  a  House  of  Representatives ;  every  six  years 
the  States  choose  a  Senate.  The  Senate  is  the  appointed 
guardian  of  the  rights  of  the  States  in  their  corporate  cha- 
racter. Each  State  has  an  equal  vote  in  the  Senate,  so  that 
the  smaller  may  not  be  overborne  by  the  larger.  No  bill  can 
become  a  law  without  the  concurrence  of  the  Executive  and  a 
majority  of  both  Houses  of  the  Legislature,  or  without  the 
sanction  of  two-thirds  of  the  Legislature,  should  the  President 
refuse  his  consent.  Granting,  therefore,  the  unlimited  power 
of  the  Government  over  the  Union  and  the  Constitution,  it 
means  nothing  more  than  the  unlimited  power  of  a  majority 
of  the  people,  acting  both  as  a  confederacy  and  as  a  nation. 
An  infringement  of  the  Constitution  by  the  Government  will 
be  either  approved  by  the  majority  of  the  people  or  disap- 
proved. Their  approbation  must  be  regarded  as  evidence  that 
the  act  was  wise  and  necessary.  If  it  be  against  the  will  of 
the  majority,  the  next  Congress  can  remedy  the  evil.     Whilst 


UNION.  149 

the  representation  of  the  States,  as  such,  in  the  Senate,  was 
intended  to  secure  their  equality,  yet,  inasmuch  as  the  State 
LegisLatures  who  appoint  the  Senators  are  themselves  elected 
by  the  same  people  who  choose  the  President  and  the  House 
of  Representatives,  and  who  are  imbued  with  the  feelings  of 
State  pride  and  love  of  local  power  which  characterize  the  na- 
tion, the  rights  of  the  States  are  really  as  much  under  the 
guardianship  of  these  latter  as  of  the  Senate,  and  as  likely 
to  be  respected  by  them. 

These  are  the  only  means  by  which  the  position  of  the 
States  is  protected  by  the  Constitution.  Those  means  are 
instruments  by  which  the  people  can  at  all  times  limit  or  en- 
large the  action  of  either  central  or  local  power,  maintain  a 
just  balance  between  the  two,  and  control  the  Union, — to  pre- 
serve it,  to  dissolve  it,  to  add  to  it,  or  to  diminish  it,  as  cir- 
cumstances may  require.  The  State  Governments  add  greatly 
to  the  strength  of  local  as  opposed  to  central  authority.  They 
are  organized  bodies,  always  ready  to  act,  either  by  their  Exe- 
cutives or  Legislatures,  or  both.  A  violation  of  the  constitu- 
tional rights  of  one  State  would  menace  the  rights  of  all.  The 
Government  of  the  State  which  supposes  itself  injured  would 
at  once  sound  the  alarm,  and  might  count  on  the  sympathy 
and  support  of  the  others  in  all  legal  means  of  redress,  and, 
those  failing,  in  extra  legal  means, — forcible  resistance, — 
unless,  indeed,  the  act  of  the  General  Government  was  one 
approved  by  the  majority  of  the  people. 

These  defences  are  all  that  the  case  admits  of,  and  they  are 
more  than  sufficient.  The  danger  to  our  institutions  lies,  as 
the  writers  of  the  Federalist  predicted  and  as  experience  has 
proved,  not  in  the  strength  but  in  the  weakness  of  central  as 
compared  with  local  power.  The  encroachments  to  be  dreaded 
are  those  of  the  States  on  the  General  Government, — not  of 
the  General  Government  on  the  States.  Such  must  be  the 
case,  because  local  attachments  are  much  stronger  than  any 
feeling,  for  a  country  so  extensive  and  diversified  as  ours,  can 
possibly  be.  An  Englishman  loves  England,  a  Scotchman 
Scotland,  an  Irishman  ^Ireland,  a  thousand  times  more  than 
either  of  them  loves  the  British  Empire.     So  it  is  with  us,  not 


150  THE    TRIAL    OF    THE    CONSTITUTION. 

only  in  relation  to  States,  but  to  groups  of  States.  New  Eng- 
land, the  Northwest,  the  Middle  States,  the  South,  are  becom- 
ing more  and  more  distinctly  marked  and  united  by  their  inte- 
rests, their  manners,  and  their  sentiments  every  day,  and  w-ould 
each  make  common  cause  in  resisting  a  violation  of  the  rights 
of  any  one  of  their  number.  It  was  attachment  to  local  power 
that  caused  the  separation  of  the  Colonies  from  England.  The 
same  feeling  opposed  almost  insurmountable  obstacles  to  the 
adoption  of  the  Constitution,  has  since  more  than  once  threat- 
ened the  existence  of  the  Union,  and  at  length  has  caused  the 
present  war,  which  may  perhaps  destroy  it. 

Mr.  Madison  was  therefore  prophetic  when  he  said  that 
"  the  first  and  most  natural  attachment  of  the  people  will  be 
to  the  Governments  of  their  respective  States.  ...  A  local 
spirit  will  infallibly  prevail  much  more  in  members  of  Con- 
gress than  a  national  spirit  in  the  Legislatures  of  the  States. 
.  .  .  Ambitious  encroachments  of  the  Federal  Government  on 
the  authority  of  the  State  Governments  would  not  excite  the 
opposition  of  a  single  State  or  of  a  few  States  only.  They 
would  be  signals  of  general  alarm.  Every  State  Government 
w'ould  espouse  the  common  cause.  A  correspondence  would  be 
opened.  Plans  of  resistance  would  be  concerted.  One  spirit 
would  animate  and  conduct  the  whole."*  The  language  of 
Hamilton  is  to  the  same  effect:  "It  may  safely  be  received  as 
an  axiom  of  our  political  system,  that  the  State  Governments 
will  in  all  possible  emergencies  afford  complete  security  against 
invasions  of  the  public  liberty  by  the  national  authority.  Pro- 
jects of  usurpation  cannot  be  masked  under  pretences  so  likely 
to  escape  the  penetration  of  select  bodies  of  men,  as  of  tlic 
people  at  large.  The  Legislatures  will  have  better  means  of 
information;  they  can  discover  the  danger  at  a  distance;  and, 
possessing  all  the  organs  of  civil  power  and  the  confidence  of 
the  people,  they  can  at  once  adopt  a  regular  plan  of  opposi- 
tion, in  which  they  can  combine  all  the  resources  of  the  com- 
munity.    They  can  readily  communicate  with  each  other  in 

*  Federalist,  No.  46. 


UNION.  151 

the  different  States,  and  unite  their  common  forces  for  the 
protection  of  their  conunon  liberty."* 

It  might  happen,  certainly,  that  a  tyrannical  majority  would, 
notwithstanding  all  these  securities,  persist  in  unjust  and  op- 
pressive measures.  But  no  Constitution  can  guard  against  a 
determined  violation  of  duty  by  every  branch  of  the  Govern- 
ment, or  provide  for  all  the  dangers  that  a  fertile  imagination 
may  conjure  up.  The  most  limited  powers  are  capable  of  un- 
limited abuse,  for  it  is  impossible  to  confer  power  without  also 
conferring  the  ability  to  abuse  it.  A  Government  that  is  con- 
stantly under  the  control  of  the  people  will  be  what  the  people 
choose  to  make  it.  The  fault  must  therefore  be  in  them,  should 
it  fail,  for  they  have  absolute  power  over  both  its  administra- 
tion and  its  form.  The  central  Government  cannot  disregard 
the  reserved  privileges  of  the  States,  except  by  the  consent  of 
a  majorit}'  of  them,  given  by  their  vote  in  the  Senate.  Should 
such  an  act  be  necessary  to  the  safety  of  the  Union,  then  it 
would  be  a  just  and  wise  exercise  of  the  supreme  power  which 
every  Government  must  possess  for  its  own  preservation. 
Should  it  be  unnecessary  or  inexpedient,  the  next  Congress, 
representing  both  the  States  and  the  people,  could  and  would 
remedy  the  mistake.  Should  the  case  be  one  of  criminal 
usurpation,  with  a  design  to  injure  and  oppress,  or  to  create  a 
revolution  in  which  all  branches  of  the  Government  joined,  it 
is  one  against  which  no  Constitution  can  provide ;  and,  there 
being  no  legal  means  of  redress,  the  only  resort  is  to  that  ulti- 
mate natural  right  of  self-defence,  to  which  our  ancestors  ap- 
pealed when  they  withstood  the  power  of  England. 


It  thus  appears  that  our  Constitution  actually  does,  what  it 
was  intended  to  do,  create  a  Government  "  adequate  to  the 
exigencies  of  the  Union."  These  Avords  mean  now  just  what 
they  meant  when  the  Constitution  was  made, — a  Government 
adequate  to  the  preservation  of  such  a  Union  as  the  people 

*  Federalist,  No.  28. 


152  THE    TRIAL    OF    THE    CONSTITUTION. 

choose  to  have  or  are  able  to  have.  When  the  Constitution  was 
ratified  the  Union  consisted  of  thirteen  States.  Before  the 
present  Avar,  it  consisted  of  thirty-four.  Between  these  two 
points  it  has  been  constantly  changing.  What  it  will  he  when 
the  war  ends,  no  one  can  predict.  The  title  is  ambulatory 
and  must  be  so  of  necessity.  But  this  much  is  certain,  that 
the  Government  representing  the  majority  of  the  States  and 
of  the  people  must  have  absolute  power  over  the  Union,  in 
order  to  be  adequate  to  its  exigencies,  for  these  exigencies  are 
illimitable  as  the  chances  of  futurity,  and  may  demand  that  the 
Union  be  either  maintained  or  dissolved  by  mutual  consent  or 
against  the  consent  of  some  of  its  members. 

The  American  people,  acting  in  the  double  capacity  of 
States  and  of  a  people,  agreed  to  form  a  Government  that  should 
be  a  confederacy  and  a  nation.  In  its  Federal  character, 
that  Government  may  rightfully  maintain  the  Union,  as  it 
exists  at  any  given  time,  or  consent  to  the  Avithdrawal  of  some 
of  its  members,  or  expel  those  whose  presence  is  injurious  to 
the  others,  and  yet  the  Union  in  a  legal  sense  would  still 
remain,  for  the  Constitution  does  not  limit  its  size,  and  that 
which  contains  the  majority  of  the  people,  Avhich  retains  the 
insignia  of  power,  the  name  and  the  flag,  and  maintains  the 
continuity  of  authority,  is  the  legal  Union.  In  its  national 
character  the  Government  may  defend  and  keep,  if  it  can,  the 
whole  of  its  territory  or  dispose  of  a  part  of  it  as  necessity  or  ex- 
pediency may  require  ;  whilst,  as  I  have  already  shoAvn,  merely 
as  a  Government,  the  creature  of  a  compact  by  virtue  of  which 
the  contracting  parties  ceased  to  exist,  and  which  therefore  is 
their  substitute  and  the  inheritor  of  their  poAver,  it  has  and 
must  liave  supreme  authority,  as  representing  the  majority  of 
the  people,  to  do  Avhatever  may  be  necessary  for  the  accom- 
plishment of  these  purposes. 


It  Avould  be  a  Avaste  of  words  to  argue  that  the  preservation 
of  the  Union  is  one  of  the  "  exigencies  "  for  Avhich  the  Govern- 
ment has  ample  poAver.     It  Avas  made  for  that  very  purpose. 


UNION,  153 

Upon  this  point  our  convictions  ought  to  be  clearer,  for  our 
experience  is  larger  than  that  of  our  ancestors.  They  had 
felt  the  evils  of  a  weak  and  partial  Union,  and  saw  immediately 
before  them  the  manifold  dangers  of  complete  separation.  All 
these  we  now  feel  and  see,  and  they  appeal  to  us  with  greater 
force,  because  we  have  so  long  enjoyed  the  unspeakable  bless- 
ings of  that  "  more  perfect  Union  "  which  the  Constitution 
was  intended  to  create  and  did  create.  The  only  Union  to 
which  our  ancestors  could  look  back  was  that  of  the  Con- 
federacy, so  prolific  of  disaster,  and  to  their  position  as  colonies 
of  England,  connected  with  painful  memories  of  dependence 
and  oppression,  but  which,  bad  as  it  was,  was  better  than  the 
chaos  threatened  by  separation.  They  knew  well  what  centu- 
ries of  disastrous  war  led  at  length  to  the  Union  of  England 
with  Scotland,  and  they  could  see  nothing  before  them  as  a 
consequence  of  the  separation  of  the  States  but  perpetual 
war ;  war  between  the  States  and  alliances  made  by  these  with 
European  powers  leading  to  foreign  war.  Therefore  all  the 
great  men  of  the  day  were  earnest  in  their  exhortations  to  pre- 
serve the  Union,  and  exhausted  their  powers  of  argument  and 
persuasion  to  prove  its  importance,  or  rather  its  absolute  ne- 
cessity, as  the  condition  of  all  national  power,  glory  and  happi- 
ness. The  counsels  of  Washington  were  animated  throughout 
by  this  spirit,  and  particularly  his  Farewell  Address,  and  the 
writers  of  the  Federalist  were  eminent  advocates  of  the  same 
opinions.  Those  who  are  disposed  now  to  think  lightly  of  the 
Union,  may  read  with  advantage  the  numbers  of  that  work  de- 
voted to  the  subject.  I  shall  make  but  one  extract,  which  has 
peculiar  significance  to  us  at  the  present  time.  It  relates  to 
the  risks  of  a  standing  army,  which  in  England  have  been 
averted  by  Union  and  her  insulated  position,  and  which  here 
might  be  averted  by  Union  and  the  ocean  which  separates  us 
from  Europe. 

"  The  Union  itself,"  says  Mr.  Madison,  "  which  the  Consti- 
tution cements  and  secures,  destroys  every  pretext  for  a 
military  establishment  that  could  be  dangerous.  America 
united,  with  a  handful  of  troops  or  without  a  single  soldier, 
exhibits  a  more  forbidding  posture  to  foreign  ambition  than 


154  THE    TRIAL    OF    THE    CONSTITUTION. 

America  disunited  -with  an  linndred  thousand  veterans,  ready 
for  combat.  .  .  .  Being  rendered  by  her  insular  position, 
and  her  maritime  resources  impregnable  to  the  armies  of  her 
neighbors,  the  rulers  of  Great  Britain  have  never  been  able, 
by  real  or  artificial  dangers,  to  cheat  the  public  into  an  ex- 
tensive peace  establishment.  The  distance  of  the  United 
States  from  the  po^verful  nations  of  the  world  gives  them  the 
same  happy  security.  A  dangerous  establishment  can  never 
be  necessary  or  plausible  so  long  as  they  continue  a  united 
people.  But  let  it  never  for  a  moment  be  forgotten  that  they 
are  indebted  for  this  advantage  to  their  Union  alone.  The 
moment  of  its  dissolution  will  be  the  date  of  a  new  order  of 
things.  .  .  .  Instead  of  deriving  from  our  situation  the 
precious  advantage  which  Great  Britain  has  derived  from 
hers,  the  face  of  America  will  be  but  a  copy  of  that  of  Europe. 
It  will  present  liberty  crushed  everywhere  between  standing 
armies  and  perpetual  taxes.  The  fortunes  of  disunited  America 
will  be  even  more  disastrous  than  those  of  Europe.  ,The 
sources  of  evil  in  the  latter  are  confined  to  her  own  limits. 
No  superior  powers  of  another  quarter  of  the  globe  intrigue 
among  her  rival  nations,  inflame  their  mutual  animosities, 
and  render  them  the  instruments  of  foreign  ambition,  jealousy 
and  revenge.  In  America  the  miseries  springing  from  her 
internal  jealousies,  contentions  and  wars  would  form  a  part 
only  of  her  lot.  A  plentiful  addition  of  evils  would  have 
their  source  in  that  relation  in  which  Europe  stands  to  this 
quarter  of  the  earth,  and  which  no  other  quarter  of  the  earth 
bears  to  Europe."* 

Union  and  isolation  have  also  secured  Great  Britain  from 
invasion  and  from  the  devastations  of  war  which  have  con- 
stantly visited  the  nations  of  the  Continent.  England  has  thus 
become  a  hive  of  industry  and  a  storehouse  of  the  vast  trea- 
sures of  useful  and  beautiful  tilings,  created  by  art  and  accu- 
mulated by  wealth  and  taste  tlirough  long  centuries.  The 
island  is  covered  Avith  cities  and  towns  and  factories,  and 
happy  homes,  of  all  grades,  from  the  yoeman's  cottage  to  the 

*  Federalist,  No.  41. 


UNION.  155 

nobleman's  hall  and  castle,  whose  parks  and  gardens  and  well- 
tilled  fields  have  never,  for  many  generations,  been  trodden 
by  the  foot  of  an  enemy.  All  that  the  arts  of  peace  have 
produced  have  therefore  been  garnered  and  guarded  from  the 
destroying  touch  of  Avar,  whilst  the  warlike  genius  of  the  people 
has  found  ample  scope  for  exercise  and  for  triumph  beyond 
the  encircling  sea.  It  was  not  so  before  the  Union.  It  will 
not  be  so  with  us  when  our  Union  is  destroyed,  as  the  South- 
ern States,  desolated  now  by  contending  armies,  may  testify. 

The  question  of  Union,  therefore,  is  now  to  us  precisely 
what  it  was  to  England,  Scotland  and  Ireland,  and  what  it 
was  to  our  ancestors  in  1787.  Shall  we  be  a  great  and  power- 
ful nation,  with  free  institutions,  strong  enough  to  withstand 
the  world  in  arms,  and  able  to  develop  in  peace  and  security 
the  unequalled  resources  of  our  great  inheritance,  or  shall  we 
be  divided  into  two,  or  perhaps  four  or  five  republics,  jealous 
of  each  other,  each  seeking  to  strengthen  itself  against  the 
other  by  internal  or  foreign  alliances,  and  engaged  in  perpe- 
tual war  ?  Shall  we  be  a  gigantic  Britain,  both  a  confederacy 
and  a  nation,  with  central  and  local  power,  each  acting  in  its 
appropriate  sphere,  manifold  and  one,  steadily  pursuing  our 
mission  to  cover  our  vast  domain  Avith  the  monuments  and 
trophies  of  civilization,  and  to  make  it  the  home  of  liberty, 
science  and  refinement ;  or  shall  this  ISTorthern  Continent  of 
ours  become  another  Europe,  weighed  down  by  taxes  and 
standing  armies^  governed  by  royal  families  and  intersected 
by  lines  of  fortresses  and  custom-houses  ? 

This  question,  long  foreshadowed,  is  noAV  brought  home 
to  us  as  a  practical  reality.  Was  the  idea  we  so  long 
cherished  of  a  great  republic  a  mere  dream,  and  our  faith  in 
self-government  a  delusion  ?  Can  we,  as  one  people,  keep 
this  magnificent  territory,  stretching  from  ocean  to  ocean  and 
almost  from  the  arctic  to  the  torrid  zone,  as  an  undivided 
whole,  or  must  we  parcel  it  out  into  separate  sections,  each 
giving  up  its  share  and  interest  in  all  the  rest  ?  This  is  the 
question  for  us  to-day.  It  is  one  that  the  central  Govern- 
ment has  a  right  to  decide,  if  the  principles  advanced  in  this 
and  the  foregoing  chapter  be  correct.     It  is  one  which  each 


156  THE    TRIAL    OF    THE    CONSTITUTION. 

State  has  a  right  to  decide,  according  to  certain  doctrines  which 
have  had  great  influence  in  our  politics.  What  may  turn  out 
to  be  the  judgment  of  the  majority  of  the  American  people 
about  it,  belongs  to  the  future,  though  from  present  indica- 
tions they  may  be  expected  to  say,  that  the  Government  has  a 
right  to  preserve  the  Union,  if  it  can.  Whether  they  have  or 
have  not  the  constitutional  authority.  Congress  and  the  Presi- 
dent have  undertaken  to  exercise  it,  trusting  to  the  support  of 
the  people.  Under  the  circumstances,  it  was  impossible  to 
appeal  to  the  Fifth  Article  to  decide  the  question  of  power. 
The  Government  was  obliged  either  to  permit  the  Union  to  be 
destroyed  by  armed  violence,  or  to  make  war  upon  the  rebel- 
lion. It  chose  the  latter,  and  whether  within  our  former 
limits  there  shall  now  immediately  be  one  nation  or  more  than 
one,  will  depend  upon  the  fortunes  of  that  war. 

That  the  preservation  of  the  Union  may  depend  on  the  for- 
tunes of  war,  is  clear  proof  that  the  Government  must  have 
power  to  dissolve  the  Union  or  prove  inadequate  to  the  exi- 
gencies that  may  grow  out  of  war.  The  right  to  make  war 
includes  necessarily  the  right  to  make  peace.  Cases  may 
arise  in  which  it  would  be  impossible  to  preserve  the  Union  by 
force,  or  unwise,  unjust  and  inexpedient,  and  in  such  cases  the 
separation  of  resisting  States  would  be  a- necessary  condition 
of  peace.  The  right  to  make  war  or  peace  includes  also  the 
right  to  prevent  war,  by  yielding  to  reasonable  demands. 
The  future  may  disclose  cases  in  wliich  the  demand  for  sepa- 
ration would  be  reasonable,  and  therefore  ought  not  to  be  re- 
fused. The  Constitution  was  intended  to  provide  for  all  the 
exigencies  of  the  future,  and  the  claims  of  justice  and  the 
wants  of  the  people.  Among  the  last  none  are  more  impe- 
rious and  positive  than  the  desire  for  local  self-government, 
and  for  the  privilege  of  altering  or  abolishing  their  political 
institutions.  The  Union  was  intended  to  be  a  benefit,  not  a 
burden  ;  a  guarantee  of  freedom,  not  a  fetter.  Should  it  be- 
come a  burden  and  a  fetter,  it  will  not  be  worth  preserving, 
and  ought  to  be  dissolved.  But  how  is  it  to  be  dissolved  ?  By 
mutual  consent,  with  deliberation  and  due  regard  to  all  rights, 
or  amid  the  calamities,  confusion,  animosities  and  uncertain 


UNION.  157 

results  of  civil  war,  leading  of  necessity  to  other  wars  ?  The 
former  is  surely  the  more  desirable  mode,  and  the  only  one 
worthy  of  rational,  Christian  men. 

That  it  may  be  adopted,  the  majority  of  the  people  and  of 
the  States  represented  in  the  Govei-nment,  must  have  the 
power  to  decide  upon  the  claim  of  a  State  or  States  to  with- 
draw from  the  Union.  Either  the  Government  has  this  power, 
or  it  has  no  power  to  avoid  civil  war,  which  Avould  inevitably 
follow  the  refusal  of  a  just  and  reasonable  demand  for  sepa- 
ration. Either  the  Government  has  this  power,  or  it  is  bound  ' 
to  preserve  the  Union,  right  or  wrong,  reckless  of  conse- 
quences. The  power  is  necessary  for  the  preservation  of  the 
Union,  that  is  to  say,  as  already  explained,  the  Union  of  the 
States  willing  to  remain  united  under  the  Constitution,  which 
in  any  probable  circumstances,  we  may  expect  to  be,  for  many 
years  to  come,  a  majority.  But  if  the  right  to  decide  this 
question  is  in  the  States  severally,  and  not  in  the  Government 
representing  all  of  them,  or  if  the  separation,  forcible  or  per- 
mitted, of  some,  is  a  severance  of  the  legal  tie  that  binds  the 
others  and  the  destruction  of  the  authority  of  the  central  Go- 
vernment, then  the  future  presents  only  this  alternative  :  the 
preservation  of  the  Union  by  force  forever,  or  should  that  be 
impossible  as  to  some  of  the  States,  the  immediate  division  of 
the  country  into  as  many  nationalities  as  interest  or  inclina- 
tion may  lead  the  others  to  form.  The  protecting  power  of 
the  Government  being  withdrawn,  motives  of  self-preservation 
would  at  once  induce  such  combinations.  But  Avith  the  cen- 
tral power  supreme,  the  evils  of  disunion  might  be  restricted 
to  the  loss  of  a  part, — perhaps  a  small  and  insignificant  or 
even  injurious  part, — of  our  great  domain,  and  the  Union,  or  a 
Union  under  the  old  Constitution  and  the  existing  authority, 
large  enough,  rich  enough,  and  strong  enough  for  security  and 
national  dignity,  be  preserved. 

Our  country,  as  it  existed  before  this  unhappy  war,  stretch- 
ing from  sea  to  sea,  and  through  zones  of  varied  climate  and 
production,  with  its  lakes,  its  rivers,  its  coasts,  its  vast  in- 
terior spaces  of  fertility,  producing  in  profusion  supplies  for 
all  wants ;  our  people,  the  most  forcible  and  intelligent  on 


158  THE     TRIAL     OF     THE     CONSTITUTION. 

earth,  peacofullj  employed  in  cultivating  and  adorning  tlieir 
splendid  domain,  and  at  the  same  time  advancing  in  all  elegant 
and  useful  knowledge  ;  our  Government,  with  its  central  power, 
like  the  sun,  shedding  liglit  and  warmth  throughout  the  system, 
and  holding  to  their  appointed  orbits  the  local  powers,  without 
disturbance  of  their  separate  motion ;  such  a  country,  such  a 
people,  and  such  a  Government,  formed  indeed  a  grand  and 
noble  sjDcctacle.  Was  it  not  too  grand  and  too  noble  to  en- 
dure ?  Are  there  not  causes  that  must  sooner  or  later  disturb 
•the  nice  balance  of  a  structure  so  artificial  and  elaborate  ? 
Does  it  not  require  for  its  working  and  preservation  a  combi- 
nation of  ability  and  power  which  cannot  be  supplied  by  the 
people  to  the  Government  ? 

We  have  now  thirty-four  States,  including  those  in  rebellion. 
Others  are  yet  to  be  formed  out  of  territories  now  a  wilderness. 
These  and  many  more,  now  thinly  settled,  are  the  destined  seats 
of  populous  and  wealthy  communities.  Our  people  now  number 
thirty  millions  of  the  white  race.  The  child  is  born  that  will 
see  them  more  than  a  hundred  millions.  Seventy  or  a  hundred 
years  is  a  short  period  to  look  forward  to  in  the  life  of  a  nation. 
Forty  or  fifty  States  and  a  hundred  millions  of  people,  w'ith  a 
government  elected  by  universal  suffrage,  maintaining  central 
power  and  local  power  in  harmonious  action,  without  hindrance 
or  collision,  is,  perhaps,  among  the  possibilities  of  the  future. 
It  is  certainly  not  among  the  probabilities,  for  it  has  never 
existed  in  the  past.  The  Roman  Empire  became  a  military 
despotism  after  it  had  failed  as  a  republic,  and  then  fell  to 
pieces  as  a  despotism.  The  British  Empire  is  governed  by  an 
Imperial  Legislature  combined  with  an  hereditary  throne.  Its 
powder  extends  over  about  two  hundred  millions  of  people,  and 
five  millions  of  S(|uare  miles.  About  forty  millions  of  these 
people  are  of  the  white  race,  and  together  with  the  inferi'Or 
races,  are  subject  to  a  government  of  which  one  bi-anch  only, 
the  House  of  Commons,  is  elected  by  a  small  minority  of  the 
population  of  the  home  countries,  which  it  is  considered  to 
represent,  and  which  amounts  in  all  only  to  twxnty-seven 
millions.  Let  us  suppose  that  by  timely  concessions  England 
had  retained  all   her  American  Colonies,  which  would   have 


UNION.  159 

given  licr  now  an  Empire  of  seventy  millions  of  the  superior 
race,  and  that  the  whole,  by  universal  sufirage,  returned  mem- 
bers to  the  Houses  of  Parliament,  and  elected  also  a  Supreme 
executive  magistrate  every  four  years. 

Is  it  conceivable  that  the  Empire  would  hang  together  for  a 
quarter  of  a  century  ?  Where  would  be  the  central  power  ? 
In  London,  or  in  New  York,  or  in  Quebec,  or  in  the  East,  or 
would  there  not  soon  be  several  centres  of  power,  as  Rome, 
notwithstanding  the  prevalent  barbarism  of  the  Provinces  and 
its  military  despotism,  was  soon  divided  into  a  Western  and 
Eastern  Empire,  and  these  again  into  smaller  sections  ?  Would 
not  a  domain  so  vast  fall  asunder  b}'  the  weight  of  its  several 
parts  unless  braced  by  some  external  force,  strong  enough  to 
keep  them  together  ?  That  external  force  is  now  the  absolute 
power  of  the  home  Government.  But  it  was  not  strong  enough 
to  hold  us  when  we  were  three  millions.  It  scarcely  professes 
now  to  hold  Canada,  and  it  retains  the  other  dependencies, 
only  because  they  are  not  able  to  stand  alone.  If  England 
gave  to  her  Colonies  the  right  of  representation  in  Parliament, 
she  would  soon  be  turned  out  of  doors,  notwithstanding  her 
Lords  and  her  Monarchy,  as  King  Lear  Avas  by  his  daughters. 

There  are  limits  to  the  size  of  a  nation,  because  there  are 
limits  to  human  ability.  Ever}^  addition  brings  with  it  new 
objects  to  occupy  the  time,  thought  and  labor  of  Government, 
new  wants  to  satisfy,  conflicting  claims  to  adjust,  importunate 
demands  to  answer,  jealous  rivalries  to  soothe.  Increase  of 
territory,  or  wdiat  amounts  to  the  same  thing,  the  growth  of 
wealth  and  population  in  extensive  regions  before  a  waste, 
multiplies  the  details  of  business,  adds  to  the  number  of  offi- 
cers, swells  the  revenue,  and  with  it  the  danger  of  corruption. 
The  more  rapidly  a  great  nation  advances  in  wealth,  intelli- 
gence and  population,  the  more  urgently  does  it  require  high 
qualities  in  the  Government,  and  great  power  also.  But  the 
high  qualities  cannot  be  got  by  any  process  of  universal  suffrage 
yet  discovered,  and  the  very  intelligence  and  prosperity  of  the 
people,  render  them  jealous  of  power  and  restive  even  when 
they  control  it. 

The  dominant  passion  of  the  Saxon  race  is  for  local  self- 


160  THE    TRIAL    OF    THE    CONSTITUTION. 

government.  They  submit  unwillingly  to  a  distant  central 
authority,  though  represented  by  it,  and  only  for  the  sake  of 
protection,  of  security,  of  national  power  and  greatness.  But 
in  a  country  so  vast  as  ours,  the  share  of  some  parts  of  it  in 
the  central  authority  may  become  too  small  to  satisfy  the 
people  of  those  parts.  Local  attachment  is  stronger  than  any 
affection  for  a  whole  can  possibly  be.  A  section  may  find 
itself  in  a  permanent  minority,  always  outvoted,  and  either 
actually  or  liable  to  be  oppressed  and  treated  as  an  inferior. 
A  section  may  become  so  powerful,  and  at  the  same  time  may 
be  so  divided  by  its  interests,  its  manners  and  sentiments,  and 
by  geographical  lines  from  the  rest,  that  it  may  feel  able  to 
become  independent,  and  to  stand  alone  as  a  separate  nation. 
In  that  case  it  could  combine  within  itself  local  and  central 
power,  the  latter  more  under  the  control  of  its  people  than 
that  of  the  existing  General  Government,  and  yet  sufficient  to 
give  it  security  as  an  independent  State.  Under  these  cir- 
cumstances, and  others  that  are  supposable,  the  desire  for 
independence  would  arise.  Independence  would  be  demanded. 
Must  it  be  refused,  however  reasonable,  however  just  the  de- 
mand might  be,  and  however  respectfully  it  might  be  made  ? 
And  what  power  is  there  to  grant  it,  to  arrange  the  terms 
and  conditions  of  the  grant,  except  that  of  the  General 
Government  ? 

This  country,  fully  peopled  or  half  peopled,  is  large  enough 
to  make  five  or  six  great  nations,  each  with  its  system  of 
central  and  local  government.  The  time  will  come  when  it 
will  be  so  divided,  with  or  without  such  a  system  for  each  of 
its  parts.  Must  there  be  a  civil  war  at  each  division,  because 
the  Constitution  has  not  expressly  granted  to  Congress  power 
to  dissolve  the  Union  ?  Which  is  better,  that  these  inevit- 
able changes  should  occur,  when  in  the  fulness  of  time  they 
become  necessary,  amicably,  by  mutual  consent  and  with  a 
just  regard  to  all  rights  and  careful  provision  for  the  future, 
or  that  each  separation  should  be  attempted  by  rebellion,  the 
result  of  which  would  be,  if  successful,  a  revolution,  followed 
by  years  of  bitterness  and  probable  war ;  if  unsuccessful,  the 
forced  obedience  and  subjection  of  the  weaker  party,  in  wdiich 


UNION.  161 

there  can  be  no  true  union.  Would  it  not  be  wiser  to  preserve 
the  whole  Union  as  long  as  possible,  by  wreathing  the  chains 
of  necessary  authority  with  garlands  of  benefit  and  blessing, 
so  that  if  possible  none  shall  wish  to  leave  it,  but  when  a 
swarm  is  ready  to  have  a  hive  of  its  own,  to  permit  it  to  depart 
with  good  wishes  and  friendly  adieus,  so  that  the  kindness  of 
old  fellowship  and  kin  may  be  afterwards  preserved  ? 

In  this  Avay  only  can  the  Union  be  maintained,  not  indeed 
forever,  for  nothing  human  lasts  forever,  but  the  Constitu- 
tional Union,  the  Union  seceded  from  and  whose  Government 
permits  separation,  may  be  maintained,  though  in  process  of 
time  it  be  reduced  to  less  in  number  than  the  original  thirteen 
States,  just  as  Britain  when  she  lost  her  American  colonies 
was  still  Britain,  and  would  be,  were  she  to  lose  Canada  and 
India  and  be  reduced  to  the  home  countries.  It  is  very  true 
that  with  the  separation  of  even  an  inconsiderable  section,  a 
new  era  would  commence.  The  separated  portion  might  at 
once  seek  to  strengthen  itself  by  foreign  alliances  with  Euro- 
pean nations  and  by  intrigues  to  induce  other  States  to  join 
it.  Border  wars  and  foreign  wars  would  follow  and  the  charm 
of  inviolability,  of  peace  at  home  and  security  from  abroad,  so 
long  the  happiness  of  America,  as  it  has  been  and  is  of  Eng- 
land, would  be  broken.  The  principle  of  the  balance  of 
power  would  at  once  begin  its  action  and  repeat  here  the  his- 
tory of  the  continent  of  Europe.  All  this  we  se«  foreshadowed 
in  the  present  war.  Only  b}^  preserving  the  whole  Union  in 
its  integrity  and  its  power  can  this  fate  be  averted.  It  may 
perhaps  thus  be  avoided  for  the  present  and  the  evil  day  be 
postponed  for  another  generation.  That  will  depend  on  the 
issue  of  the  contest  now  raging  between  North  and  South,  a 
contest  which  waxes  in  its  dimensions  and  force  and  bitterness 
every  day,  so  that  its  results  cannot  be  predicted.  But  con- 
stitutions and  laws  are  intended  not  for  the  present  hour  only 
and  for  the  generation  that  is  passing  away,  and  his  ken  is 
limited  who  cannot  include  within  their  scope  the  interests 
and  happiness  of  a  distant  posterity. 

It  is    very   true  that    the  lakes,   rivers,  coasts,  mountain 

11 


162  THE     TRIAL     OF     THE     CONSTITUTION. 

ranges  and  the  general  structure  of  our  country,  facilitating 
intercourse,  all  indicate  the  advantages  and  proffer  the  ph_ysi- 
cal  means  of  union.  It  is  true  also  that  the  common  origin, 
language,  literature,  laws  and  traditions  of  the  yet  dominant 
race  jDoint  in  the  same  direction.  Nevertheless,  the  causes 
already  mentioned,  the  vast  extent  of  our  territory,  the 
enormous  forces  of  numbers,  wealth  and  intelligence  that  are 
growing  up  in  the  several  parts,  the  influences  acting  upon 
those  parts  to  assimilate  and  group  them  into  distinct  sections, 
the  diversities  of  race  which  are  beginning  to  play  so  impor- 
tant a  part  in  our  politics  and  the  extreme  diSiculty  of  govern- 
ing such  an  empire  by  democratic  institutions,  all  warn  us 
to  expect  the  fate  of  continental  Europe.  To  be  forewarned 
ought  to  be,  to  be  prepared,  and  the  question  for  wise  men  is, 
not  how  to  resist  the  inevitable,  but  how  to  meet  it  and  how 
to  postpone  and  mitigate  its  evils. 

There  are  two  evils  to  be  avoided  in  dealing  with  the  (ques- 
tion of  the  Union.  One  is  an  unjust  and  unreasonable  effort 
to  coerce  a  State  or  States,  so  as  to  produce  a  civil  war,  and 
another  is,  the  sudden  rupture  of  the  legal  tie  binding  all, 
the  consequence  of  which  would  be,  immediate  combinations 
according  to  geographical  and  other  affinities,  not  likely  to  be 
effected  peacefully  and  leading  directly  to  the  misfortune 
most  to  be  dreaded, — the  division  of  the  countr}^  into  many 
independent  nations. 

How  are  these  evils  to  be  avoided  ?  Surely  by  slow  dis- 
integration. By  resisting  unjust  demands  for  separation  and 
granting  just  ones.  By  maintaining  the  whole  of  our  empire 
whilst  we  can  and  ought,  and  by  giving  up  parts  of  it  only 
when  we  must  or  should.  Justice  satisfies  all  men,  and  by 
dealing  justly  and  more  than  justly,  kindly  and  generously, 
with  our  departing  brethren,  we  might  form  with  them  an- 
other union  of  friendship  and  alliance,  and  thus  avoid  or 
diminish  the  risks  of  war.  We  can  afford  to  lose  the  States 
now  in  rebellion  and  yet  remain  a  great  and  powerful  nation, 
strong  enough  to  defy  them  and  their  foreign  allies  should 
they  have  any.  Freed  from  the  disturbing  influence  of  the 
negro  race,  a  Northern  Confederacy,  still  the  United  States, 


UNION.  163 

under  the  old  Constitution  and  the  old  flag,  if  wisely  governed, 
might  be  expected  to  endure  for  many  years. 

Under  the  influence  of  favoring  causes,  the  adventurous 
genius  of  the  Saxon  race  has  improvised  a  powerful  com- 
munity on  the  shores  of  the  Pacific.  It  has  grown  with  un- 
exampled rapidity.  It  has  every  element  of  prosperity.  A 
healthful  and  agreeable  climate,  a  bountiful  soil,  gold  and 
silver,  mountains,  rivers,  and  a  sea  opening  a  highway  to  the 
riches  of  the  East,  furnish  to  this  favored  land  ample  resources 
for  agriculture,  manufactures  and  commerce.  It  belongs  to  a 
people  Avho  well  know  how  to  develop  its  resources.  They  can 
supply  themselves  with  every  comfort  and  luxury  demanded  by 
civilization  and  refinement.  They  have  the  American  Constitu- 
tion, the  common  law,  the  language  and  literature  of  England, 
and  they  have  the  Anglo-Saxon  love  of  self-rule,  of  power 
and  supremacy.  They  are  separated  by  mountains  and  deserts 
and  by  the  ocean  from  the  rest  of  the  Union  and  from  the 
world.  The  time  must  come  when  they  will  say,  "  We  are 
strong  enough  to  stand  alone,  to  be  ourselves  a  nation. 
Washington  is  distant.  Why  should  a  Government  seated 
there  rule  us,  when  we  might  have  one  here  at  home,  more 
under  our  own  influence,  better  acquainted  with  our  aff"airs  ? 
We  do  not  need  protection.  We  can  protect  ourselves.  We 
need  nothing  that  the  United  States  can  give  us.  We  can 
supply  all  our  wants  by  our  industry,  or  by  our  gold  we  can 
procure  the  productions  of  every  climate.  Why  should  New 
York  control  our  interests  ?  Why  should  the  Mississippi 
Valley  help  to  govern  us  ?  Let  us  go  to  Washington  and  tell 
this  to  our  brethren.  Let  us  ask  permission  to  withdraw  in 
peace  and  friendship  from  the  LTnion." 

Could  such  a  request  be  answered  by  ships  of  war  and  the 
roar  of  rifled  cannon  ?  Would  not  justice  and  good  policy 
alike  require  that  it  be  granted  without  hesitation,  and  that  it 
be  followed  by  a  treaty  of  perpetual  alliance  and  good  feeling? 
That  done,  a  Union  would  still  remain.  Supposing  the  event 
delayed  for  even  so  short  a  period  as  twenty  years ;  the  United 
States,  under  the  old  Constitution  and  the  old  flag,  would  still 
be  a  great  and  powerful  nation.     And  the  process  might  go  on 


164  THE    TRIAL     OF    THE    CONSTITUTION. 

from  time  to  time,  with  such  intervals  as  wisdom  and  justice 
could  secure,  and  thus  be  spread  over  many  years,  during 
which  the  dreaded  consequences  of  disunion  might  be  pre- 
vented and  the  fate  of  Continental  Europe  avoided. 

It  is  obvious  that  if  the  central  Government  has  authority 
either  to  maintain  the  union  of  all  the  States  or  to  permit  the 
separation  of  any,  as  justice  or  expediency  may  demand,  there 
can  be  no  such  thing  as  the  constitutional  right  of  secession 
in  a  State.  The  reasoning  Avhich  proves  the  power  of  the  Go- 
vernment to  preserve  the  Union  disproves  the  right  of  a  State 
to  break  it, — an  idea  wholly  inconsistent  with  the  existence  of 
a  National  Government. 

Both  the  Constitution  itself  and  its  history  show  that  it  cre- 
ated and  was  intended  to  create,  at  the  same  time  a  confede- 
racy and  a  nation,  and  that  its  federal  is  necessarily  subordi- 
nate to  its  national  character.  Granting,  however,  all  the 
importance  claimed  for  the  federal  attributes  of  the  Govern- 
ment, if  it  was  a  compact,  it  was  made  to  form  a  Union, — a 
"more  perfect  Union,"  as  itself  declares,  than  existed  under 
the  old  Confederacy.  Had  it  been  intended  that  one  of  the 
States  created  by  this  compact  should  have  power  to  defeat  its 
object,  a  right  so  important  would  have  been  expressly  stated, 
and  some  formal  mode  provided  for  its  execution. 

Those  who  advocate  the  right  of  secession  are  what  are 
called  "strict  constructionists,"  and  deny  to  the  Government 
all  powers  not  expressly  enumerated  in  the  Constitution.  They 
nevertheless  do  not  hesitate  to  resort  to  inference  and  implica- 
tion to  serve  their  purpose.  The  only  part  of  the  Constitu- 
tion from  which  the  right  of  secession  can  possibly,  by  any 
ingenuity,  be  implied,  is  the  tenth  article  of  the  Amendments, 
which  declares  that  "the  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the  people." 
Among  tlie  powers  thus  reserved  to  the  States,  these  rea- 
soners  contend,  is  that  of  seceding  at  pleasure  from  the 
Union.  It  would  be  a  violent  presumption  that  gave  to 
these  words  a  meaning  destructive  to  the  primary  object  of 
the   Constitution    and    the   Government   it  was   intended   to 


UNION.  165 

create.  A  more  just  rule  of  construction  would  be  to  sacri- 
fice the  article  to  that  object  and  that  Government.  But  no 
such  sacrifice  is  necessary.  The  powers  thus  reserved  to  the 
States  are  their  powers  of  local  self-government  by  their  own 
executive  officers,  legislative  assemblies,  and  courts, — which 
powers  are  neither  delegated  to  the  United  States  nor  prohi- 
bited to  the  States.  The  language  of  the  article  being  thus 
fully  satisfied  b}^  a  meaning  consistent  with  the  whole  history, 
tenor,  and  spirit  of  the  Constitution,  it  is  illogical  to  give  it  an 
interpretation  inconsistent  with  all. 

Nevertheless,  this  doctrine  of  the  right  of  secession,  however 
absurd  and  incompatible  with  the  general  principles  on  Avhich 
every  Government  must  be  founded,  has  been  the  disease  of 
ours  from  an  early  period  of  its  history,  and  now  threatens  its 
life.  Its  fit  companions  are  the  right  of  nullification  ;  that  is 
to  say,  the  riglit  of  a  State  to  veto  an  Act  of  Congress,  and 
the  right  of  a  State  or  of  the  Supreme  Court  to  declare  a  mea- 
sure of  the  Government  nidi  and  void  because  it  violates  the 
Constitution,  and  to  release  the  people  from  the  obligation  of 
obedience  to  the  laws.  Such  are  the  wild  theories  of  jurispru- 
dence by  which  rebellion  has  heretofore  been  prompted,  and  by 
which  it  is  now  fed,  supported,  and  advocated.  They  are  as 
inconsistent  with  truth  and  reason  as  they  are  with  the  prin- 
ciples of  our  Constitution,  or  of  any  possible  Constitution. 
They  are  consistent  only  with  anarchy  and  misrule ;  and  the 
wonder  is,  such  fallacies  prevailing,  not  that  the  Union  and 
the  Government  have  been  attacked  by  rebellion  so  soon,  but 
that  they  have  escaped  it  so  long. 

It  rarely  happens,  however,  that  any  opinions  long  held  by 
large  numbers  of  men  are  without  some  foundation  of  truth. 
The  claim  of  a  lesi;al  ri^-ht  of  secession  arises  from  the  desire 
for  self-government  which  is  instinctive  in  our  people.  It 
caused  our  Independence,  it  is  the  animating  principle  of  our 
Constitution,  it  is  the  efficient  guardian  of  the  federal  charac- 
ter of  our  system.  The  right  of  the  people  to  alter  or  abolish 
their  form  of  Government  at  pleasure  cannot  be  denied  by  any 
one  of  the  Saxon  race. 

But  it  is  a  moral  ris-ht,  and  cannot  be  made  a  legal  one 


166  THE    TRIAL    OF    THE    CONSTITUTION. 

without  destroying  the  necessary  authority  of  Government. 
It  is  a  right,  the  exercise  of  which  may  be  wise  or  foolish,  just 
or  unjust,  conservative  or  destructive,  according  to  the  facts 
and  circumstances  of  the  particular  case.  It  may  be  rightful 
resistance  to  oppression,  or  wicked  and  treasonable  rebellion 
against  wise  laws  and  a  beneficent  Government,  instigated  by 
designing  leaders,  and  supported  by  the  folly  and  passion  of 
a  deluded  people.  According  to  its  character,  therefore,  it 
ought  to  be  treated.  Power  to  judge  it  must  be  lodged  some- 
where, and  where  can  it  be  lodged  ?  Not,  surely,  in  the  dis- 
contented State,  for  that  would  make  it  a  judge  of  its  own 
cause,  and  subject  the  rights  and  interests  of  all  the  other 
States  to  what  might  be  the  crime  or  folly  of  one.  What  tribu- 
nal so  fit  as  the  central  Government,  which  represents  the  whole, 
and  how  can  the  Constitution  of  that  Government  confer  upon 
a  part  the  legal  right  at  any  moment  to  sacrifice  the  whole? 

A  constitutional  right  of  secession  is  inconsistent  with  the 
necessary  authority  of  the  central  Government,  and  with  its 
power  to  preserve  the  Union.  Nevertheless,  the  principle 
upon  which  it  is  founded  is  a  true  principle,  and  the  moral 
wants  out  of  which  it  has  grown  must  be  satisfied.  They  can  be 
satisfied,  consistently  with  the  preservation  of  the  Union  and 
the  just  supremacy  of  its  central  authority,  only  by  ascribing 
to  that  authority  power  to  grant  a  request  for.  secession 
which  in  justice  ought  to  be  granted,  and  power  to  refuse  it 
when  it  ought  to  be  refused. 

In  the  year  1713,  seven  years  after  the  Act  of  Union  be- 
tween England  and  Scotland,  the  Scottish  people  became  dis- 
satisfied with  a  tax  imposed  by  Parliament.  They  declared 
that  it  was  injurious  to  them,  and  bore  upon  them  unequally 
as  compared  with  the  people  of  England.  Discontent  rose 
to  such  a  hein;ht  that  the  Scotch  clamored  for  a  dissolution 
of  the  Union.  They,  however,  did  not  call  a  convention' 
to  pass  an  ordinance  of  secession,  nor  did  they  determine  to 
resist  by  force  the  collection  of  the  tax.  During  the  recess  of 
Parliament,  the  Scotch  members  of  the  Houses  met  and  de- 
liberated on  the  proper  plan  to  pursue.  They  sent  a  com- 
mittee to  lay  their  grievances  before  the  Queen.     When  Par- 


UNION.  167 

liament  assembled,  one  of  these  members  moved  in  the  House 
of  Lords,  that  leave  be  given  to  bring  in  a  bill  to  dissolve  the 
Union.  The  bill  was  discussed.  Scotland  had  a  licarini!;  and 
a  vote,  and  so  also  had  England,  who  was  a  party  with 
weighty  interests  involved  in  the  dispute.  Had  the  question 
been  debated  only  in  Scotland,  England  Avould  have  had  no 
hearing.  Had  Scotland  possessed  the  right  of  secession,  the 
Union,  under  the  excitement  of  the  moment,  would  have  been 
destroyed.  Fortunately  it  was  saved,  and  remains  to  this  day 
stronger  than  ever.  It  was  saved  wholly  because  Parliament, 
representing  both  Scotland  and  England,  had  supreme  power 
either  to  maintain  or  dissolve  it.  No  appeal  would  have  been 
made  to  Parliament  but  for  this  power.  The  angry  passions 
of  the  Scotch  would  have  decided  the  question,  and  would 
have  decided  it  to  their  ruin. 

As  it  is  manifestly  just  that  a  question  which,  like  that  of 
maintaining  or  dissolving  the  Union,  involves  so  deeply  the  in- 
terests and  destiny  of  all  the  States,  should  be  discussed  by 
the  representatives  of  all,  and  decided  by  a  majority  of  them, 
so  it  is  the  surest  way  of  preserving  the  Union.  Debate 
bringfs  out  the  truth,  reveals  dishonest  motives  and  ambitious 
intrigues,  discloses  the  interests  at  stake,  the  reality  of  griev- 
ances complained  of  and  their  remedy,  if  they  have  a  remedy. 
Above  all,  the  forms  of  legislative  proceedings  interpose  de- 
lay, during  which  angry  passions  may  stibside,  moderate  men 
come  forward  with  moderate  measures,  the  sober  second 
thought  of  excited  parties  have  time  to  act,  and  the  public 
sentiment  of  the  nation,  roused  by  a  crisis,  to  make  itself 
heard  with  commanding  influence.  A  bill  brought  into  Con- 
gress to  authorize  the  withdrawal  of  a  State  or  of  several 
States,  would  not  be  decided  in  a  day.  It  wotild  excite  the 
attention  of  the  whole  country.  Parties  would  divide  upon  it. 
The  daily  press  in  multitudinous  sheets  would  present  the 
subject  in  all  its  bearings  to  the  people.  The  people  would 
express  their  opinions  in  toAvn  meetings  and  public  assemblies 
in  every  State.  The  States  in  their  corporate  capacity  would 
make  themselves  heard  through  messages  and  proclamations  of 
their  Governors  and  resolutions  of  their  Legislatures.     In  a 


168  THE    TRIAL    OF    THE    CONSTITUTION. 

word,  the  whole  battery  of  public  opinion,  with  all  its  formi- 
dable apparatus,  would  be  brought  to  bear  upon  the  subject. 

After  all  this  deliberation  and  the  action  of  these  conserva- 
tive influences,  the  bill  might  be  postponed  to  await  the  result 
of  further  reflection  and  of  conciliatory  measures  among  the 
people  of  the  State  that  introduced  it,  or  it  might  be  passed 
with  just  conditions  imposed  on  the  seceding  States,  or  it 
might  be  rejected  as  unreasonable  and  revolutionary.  In 
either  case  the  question  would  be  settled  with  the  forethought 
and  order  and  prudent  regard  to  consequences,  worthy  an  en- 
lightened people.  Should  secession  be  permitted,  it  might  be 
accompanied  by  such  terms  and  treaties  as  would  delay  or 
mitigate  the  evils  of  disunion.  Should  the  demand  be  refused 
for  good  reasons,  made  apparent  by  the  debate,  and  explained 
as  they  probably  would  be  by  the  arguments  and  eloquence  of 
eminent  men,  and  supported,  too, — as  they  probably  would 
be, — by  the  public  sentiment  of  the  nation,  these  v.'ould  have 
their  influence  in  reconciling  the  people  of  the  States  seeking 
separation  to  the  Government  of  the  Union.  The  persuasive 
force  of  these  reasons  would  be  greatly  enhanced  by  the  ad- 
mitted right  of  the  Government  to  dispose  of  the  question, 
and  to  coerce  obedience. 

It  is  not  likely,  indeed  it  may  be  considered  impossible, 
that  secession  will  ever  be  attempted  by  a  single  State.  Its 
position  would  be  too  weak  and  contemptible,  whether  it  failed 
or  succeeded.  The  insanity  of  even  South  Carolina  did  not 
extend  so  far  as  that.  The  Anglo-Saxon  people,  if  they  love 
local  self-government,  love  power  too,  and  their  taste  is  to 
found  great  nations,  not  petty  principalities.  Scotland  will 
not  secede  from  the  British  Empire,  or  the  English  in  Ireland, 
or  Wales,  but  we  did,  and  Canada  will,  and  so,  in  the  fulness 
of  time,  may  Australia.  In  like  manner  there  is  no  danger 
that  Massachusetts  or  Pennsylvania,  or  Ohio  or  California, 
will  ever  desire  to  withdraw  alone  from  the  Union.  But  it 
may  happen  hereafter  that  New  England  or  the  Middle  States, 
or  the  Northwest  or  the  Pacific  States,  shall  think  themselves 
strong  enough  to  make  a  great  nation.  It  is  to  meet  such 
cases  that  the  power  of  the  Government  to  permit  secession 


UNION.  169 

on  just  and  reasonable  terms  is  most  important.  With  this 
power  established,  secret  plots  and  conspiracies  would  be  un- 
necessary. To  desire  secession,  openly  to  propose  it,  to  en- 
deavor to  secure  the  co-operation  of  like-minded  States  would 
not  be  treason  or  sedition,  because  the  object  of  all  these  ef- 
forts would  be,  not  to  resist  or  overthrow  the  Government,  but 
with  its  consent  and  by  its  authority  to  form  another  nation. 
The  right  claimed  would  be  under  the  law,  and  not  over  it, 
the  claim  itself  would  impliedly  recognize  the  privilege  of  re- 
fusal and  recognize  also  the  existence  of  other  claims,  those 
of  the  other  States,  as  worthy  consideration  and  respect. 

A  demand  so  made  by  a  powerful  section  would  be  entitled 
to  a  respectful  hearing,  and  would  receive  it.  Should  it  appear 
that  separation  was  the  wish  of  the  people,  and  that  wish  the 
conclusion  of  their  sober  judgment,  not  the  rash  and  hasty 
plunge  of  popular  passion,  not  the  result  of  corruption  or  agi- 
tation, or  intimidation,  or  of  the  intrigues  and  arts  of  dema- 
gogues, it  is  safe  to  say,  that  it  would  not  be  refused.  It 
would  not  be  refused  for  two  reasons.  First,  because  a  claim 
so  made  and  so  supported  would  be  met  by  the  hearty  sym- 
pathy of  the  American  people.  They  could  not  reject  it  with- 
out violating  their  dominant  impulses  and  convictions,  denying 
the  principles  on  which  their  Government  is  founded,  and 
contradicting  their  annals  from  Alfred  to  Washington.  All 
these  proclaim  the  right  of  man  to  self-government,  and  the 
determination  of  the  Saxon  race  to  maintain  self-government. 
But  they  proclaim  also  a  hatred  of  sedition,  privy  conspiracy 
and  treason,  a  love  of  order,  law  and  legitimate  authority,  and 
an  equally  firm  determination  to  acquire  national  poAver  and 
rank,  and  to  maintain  a  National  Government  able  to  support 
them.  All  these  sentiments  would  be  satisfied  by  yielding  to 
the  intelligent,  well-ascertained  desire  of  a  great  section  for 
independence,  provided  such  a  measure  be  respectfully  ui'ged, 
Avith  due  legal  forms  and  fair  consideration  for  the  interests  of 
other  parties  concerned.  But  all  the  dominant  feelings  of  the 
people,  and  the  noblest  'traditions  of  their  history,  would  be 
outraged  by  an  ex  parte  act  of  separation,  executed  by  a  State 
or  a  company  of  States,  Avithout  notice,  Avithout  consultation 


170  THE    TRIAL    or     THE    CONSTITUTION. 

with  the  others,  or  deference  to  their  wishes  and  interests,  and 
in  defiance  of  the  national  authority. 

Another  reason  Avhy  a  claim  for  independence  founded  in 
justice,  supported  by  the  people  of  a  large  section,  and  respect- 
fully presented,  would  be  granted  is,  that  it  could  not  be  re- 
fused without  a  civil  war.  A  seditious  insurrection  in  a  State,  or 
in  any  number  of  States,  to  resist  the  authority  of  the  Govern- 
ment, or  even  to  overthrow  it,  unless  supported  by  the  majority 
of  the  people,  does  not  rise  to  the  dignity  and  importance  of 
civil  war.  Such  was  the  Whisky  Insurrection  in  Pennsylvania, 
and  some  others  of  a  similar  character  in  our  history.  But 
when  the  whole  people  of  a  large  and  powerful  section  take  up 
arms  to  vindicate  rights,  real  or  imaginary,  or  to  resist  wrongs, 
real  or  imaginary,  that  is  civil  war,  and  it  is  a  calamity  not  to 
be  lightly  encountered,  even  if  the  insurgents  are  unreasonable 
in  their  demands.  It  must  be  encountered,  nevertheless,  by 
the  Government  when  necessary  to  defend  itself,  its  honor  and 
dignity,  its  territory  and  the  authority  of  the  laws.  A  just 
war  for  these  purposes  would  strengthen  the  Union,  even 
though  a  portion  of  it  might  be  lost,  consolidate  its  power,  and 
elevate  its  character  at  home  and  abroad. 

But  a  demand  for  separation  may  be  just  and  reasonable. 
If  so,  to  opj)Ose  it  would  be  unjust  and  unreasonable,  however 
much  material  interests  might  apparently  require  opposition. 
What  good  result  could  it  produce  ?  Should  the  Government 
be  defeated,  it  would,  after  a  vain  sacrifice  of  life  and  property, 
lose  not  territory  and  power  only,  but  character  also,  and  the 
mortification  of  defeat  on  one  side  and  the  exultation  of  victory 
on  the  other,  would  be  the  cause  of  future  wars  between  the 
embittered  sections.  On  the  other  hand,  if  the  Government 
succeeded  in  reducing  resisting  States  to  submission,  and  im- 
posing upon  them  the  yoke  of  a  hated  authority,  would  a 
compelled  Union,  cemented  by  blood,  be  the  Union  of  the  Con- 
stitution, or  a  secure  foundation  for  national  glory  and  great- 
ness ?  Could  it  be  followed  by  a  real  peace,  and  how  long 
would  it  endure  ?  Would  not  the  National  Legislature  be  a 
scene  of  discord,  if  members  from  con(|ucred  States  formed  a 
part  of  it  ?     Would  not  these  States  find  multitudes  of  sym- 


UNION.  171 

patliizers  and  friends  in  the  others,  and  immediately  endeavor 
to  make  alliances  with  them  and  with  foreign  nations,  in  order 
to  renew  the  contest  ?  And  how  long  would  it  he  hefore  the 
flames  of  war  were  again  kindled,  to  hurn  with  wider  scope  and 
hotter  fury  ?  The  American  people  desire  no  such  Union.  If 
they  cannot  have  one  founded  on  consent  and  mutual  <rood 
will  and  common  interests  in  a  common  destiny,  they  would 
rather  give  up  their  cherished  hope  of  a  great  Republic,  and 
accept  the  destiny  of  Europe. 

For  these  reasons  it  may  be  confidently  assumed,  that  the 
people  would  not  refuse  a  just  demand  for  separation,  properly 
presented.  But  there  must  be  a  tribunal  to  decide  upon  the 
merits  of  such  a  case,  and  to  settle  the  terms  of  separation. 
This  tribunal  is  the  General  Government,  representing  all  the 
States  and  the  whole  people,  for  there  can  be  no  other.  It 
alone,  by  refusing  separation  where  it  ought  to  be  refused,  or 
granting  it  where  it  ought  to  be  granted,  could  save  still  a 
Union  and  avert  the  calamities  of  war. 

Assuming  that  the  majority  of  the  States  and  of  the  people 
represented  in  the  central  Government  have  the  constitutional 
power  to  preserve  the  Union,  or  to  consent  to  the  separation, 
from  it  of  one  or  more  of  the  States,  does  it  not  follow  that 
the  Government  has  also  a  right  to  decree  a  separation  from 
one  or  more  of  the  States  against  their  consent  ?  Must  not 
this  right  exist  in  order  that  the  Government  may  be  adequate 
to  the  exigencies  of  the  Union  ?  Must  not  power  as  extensive 
be  vested  in  every  government,  to  enable  it  to  perform  the 
duty  of  preserving  the  nation,  and  of  promoting  its  happi- 
ness and  perfection  ?  The  rights  of  a  nation  spring  from  its 
obligations.  "It  has  a  right,"  says  Vattel,  "to  everything, 
without  which  it  cannot  obtain  the  perfection  of  the  members 
and  of  the  States,  or  prevent  or  repel  whatever  is  contrary  to 
that  double  perfection."*  This  principle  is  not  inconsistent 
with  another  he  had  just  laid  down.  "  If  a  nation  is  obliged 
to  preserve  itself,  it  is  not  less  obliged  to  preserve  all  its  mem- 
bers.    The  nation  owes  this  to  itself,  since  the  loss  of  one  of 

*  Vattel's  Law  of  Nations,  B.  1,  ch.  2,  §  23. 


172  THE    TRIAL    OF    THE     CONSTITUTION. 

its  members  weakens  it,  and  is  injurious  to  its  own  preservation. 
It  owes  this  also  to  the  members  in  particular,  in  consequence 
of  the  very  act  of  association  ;  for  those  who  compose  a  nation 
are  united  for  their  defence  and  common  advantage  ;  and  none 
can  justly  be  deprived  of  this  Union,  and  of  the  advantages 
which  flow  from  it,  while  he  on  his  side  fulfils  the  conditions. 
The  body  of  a  nation  cannot,  therefore,  abandon  a  province,  a 
town,  or  even  a  particular  person,  Avho  has  done  his  ijart,  un- 
less obliged  to  it  from  necessity,  or  unless  it  is  made  necessary 
by  the  strongest  reasons  founded  on  the  public  safety."* 

These  are  universal  truths.  They  are  thus  a  part  of  the 
Law  of  ITations.  Let  us  apply  them  to  our  case.  It  is  ob- 
vious that  a  State  may  refuse  to  fulfil  or  may  be  unable  to 
fulfil  the  conditions  of  the  L^nion,  or  to  do  its  part  in  it.  The 
preservation  of  the  majority  or  of  -the  "  body  of  the  ITation," 
its  progress  in  civilization  and  power,  in  perfection  and  happi- 
ness,— in  all  good,  worthy,  and  noble  things, — may,  therefore, 
demand  separation  from  an  incompetent,  a  vicious,  a  diseased, 
a  decaying,  or  a  dead  part.  The  majority  must  decide  such 
questions.  It  is  the  universal  rule  of  all  States  that  the  ma- 
jority must  govern,  for  "  otherwise  it  would  be  impossible  for 
the  society  ever  to  take  any  resolution. "f  The  rule  does  not 
always  work  well,  for  sometimes  the  opinion  of  the  majority  is 
by  no  means  the  wisest.  ^Nevertheless,  the  rule  is  necessary; 
for  when  the  assent  of  more  than  a  majority  is  required,  power 
is  thereby  transferred  to  a  small  minority,  whilst  Polish  una- 
nimity is  destructive  to  all  the  ends  of  Government,  as  the 
fate  of  Poland  proves. t 

A  nation  has  a  right  to  everything  essential  to  its  safety 
and  well-beino;.  This  nation  has  a  right  to  a  Union  consist- 
ent  with  its  security,  liberty,  and  progress  in  civilization.  It 
has  exercised  power  over  the  LTnion  from  the  beginning.  The 
Constitution  provided  that  its  ratification  by  nine  States  should 

*  Vattel's  Law  of  Nations,  B.  1,  ch.  2,  §  17. 
t  Vattel's  Law  of  Nations,  B.  1,  ch.  2,  I  ?>?>. 

X  On  the  injurious  consequences  of  roquirinj^  a  vote  of  more  than  a  ma- 
jority for  deciding  a  question,  see  Federalist,  No.  22. 


UNION.  173 

be  sufficient  for  its  establishment  between  tliose  States.  The 
Convention  had  power  to  fix  upon  a  smaller  or  larger  number, 
and  to  exclude  forever  the  two  States  which  at  first  refused 
their  assent.  The  Convention  might  have  excluded  the  States 
that  refused  to  give  up  slavery  or  the  slave-trade,  and  fortu- 
nate indeed  would  it  have  been  had  thej  done  so.  The  Consti- 
tution declares  that  new  States  may  be  admitted  into  the  Union 
by  Congress.  All  this  shows  that  a  majority  of  the  States  did 
exercise  control  over  the  size  of  the  Union,  and  may,  by  ex- 
press legal  provision,  limit  the  increase  of  it.  There  is  no 
power  expressly  given  to  preserve  the  Union,  or  to  dissolve  it 
by  mutual  consent.  These  powers  are  implied  from  the  gene- 
ral language  of  the  Constitution,  and  from  the  universal  prin- 
ciples that  lie  at  the  foundation  of  all  Governments. 

The  Constitution  intended  to- grant  to  the  Government  au- 
thority "adequate  to  the  exigencies  of  the  Union."  We  have 
seen  that  those  exigencies  may  require  either  the  preservation 
of  the  Avhole  Union  as  it  exists  at  any  particular  time,  or  the 
separation  of  some  of  the  States  by  consent  of  the  majority. 
The  separation  of  one  or  more  without  or  against  their  own 
consent,  may  become  equally  necessary.  The  Union  ought  to 
be  such  as  the  majority  of  the  people  choose  to  make  it.  It 
will  be  such  in  spite  of  all  narrow  constructions  of  the  Consti- 
tution. This  was  at  its  origin  the  law  of  its  being,  and  will 
be  so  hereafter,  unless  it  shall  close  its  life  amid  the  convul- 
sions of  anarchy,  because  that  law  is  resisted.  The  only  right 
of  secession  consistent  with  peace,  safety,  and  national  exist- 
ence, is  in  the  majority. 

That  a  State  may  be  expelled  from  the  Union  will  be  to 
many  a  startling  and  unwelcome  proposition.  Yet  the  right 
of  expulsion  must  belong  to  all  associations,  whether  for  plea- 
sure, for  business,  or  for  government,  because  it  is  essential 
to  their  comfort,  their  character,  their  safety,  and  the  attain- 
ment of  their  objects.  No  view  of  the  stormy  future  that  lies 
before  us  is  more  painful  or  more  certain  than  the  truth,  that 
some  States  and  sections  of  this  country  may  become  unfit 
companions  for  the  others,  unfit  for  equality  with  them,  and 


174  THE    TRIAL     OF    THE    CONSTITUTION. 

unfit  to  influence  oi*  control  tlicir  interests  by  a  share  in  the 
central  power. 

Let  us  take,  by  way  of  ilhistration,  the  Territory  of  Utah, — 
not  yet  a  State,  indeed,  but  likely  soon  to  apply  for  admission 
into  the  Union.  Considering  that  this  is  the  nineteenth  cen- 
tury and  America,  Mormonism  is  a  remarkable  phenomenon. 
That  a  despotic  theocracy  should  grow  up  and  flourish  under 
the  sheltering  wings  of  the  great  Republic  is  scarcely  more 
surprising  than  that  polygamy,  an  Oriental  institution,  should 
have  been  successfully  transferred  to  our  extreme  West.  The 
one  contradicts  every  principle  of  our  Government,  the  other 
takes  away  a  chief  pillar  from  our  fabric  of  Christian  morality. 
Both  are  inconsistent  with  the  manners,  the  convictions,  the 
culture  of  our  people,  and  their  system  of  political  and  social 
civilization.  , 

.  Mormonism  numbers  from  250,000  to  300,000  followers. 
There  are  80,000  in  Utah,  its  chief  seat,  and  the  residence  of 
its  Prince  and  Prophet.  Strange  to  say,  he  is  a  New  England 
man  by  birth  and  education,  as  are  many  of  his  subjects.  He 
unites  the  character  of  priest  and  despot,  and  displays  ability 
as  both.  His  emissaries  are  spread  abroad  over  America  and 
Europe,  engaged,  like  the  Jesuits,  in  the  work  of  propagand- 
ism.  The  number  of  his  converts  increases,  and  from  the  great 
tide  of  "Western  emigration,  annual  rivulets  diverge  into  Utah. 
The  Saints,  notwithstanding  their  gross  superstitions  and  their 
oriental  customs,  display  the  Saxon  aptitude  for  material  pro- 
gress and  social  combination.  They  maintain  order  and  go- 
vernment, they  excel  in  the  mechanic  arts,  they  build  towns 
and  cities,  and  have  created  a  flourishing  agriculture.  They 
have  the  boldness,  the  energy,  the  arts,  the  knowledge,  the 
mind  of  the  Northern  races.  Add  to  these  qualities  the  elec- 
tric power  of  fanaticism,  the  concentration  of  despotism,  and 
they  are  not  to  be  despised.  They  are  capable  of  strong  and 
persistent  efforts,  whether  in  peace  or  war.  Some  believe  that 
they  are  destined  to  multiply  and  to  become  a  great  people ; 
others  that  contact  Avith  our  civilization  Avill  weaken  and  de- 
stroy their  faitli  and  reform  their  habits,  and  that  they  will 
be  merged  into  our  population  as  it  advances  westward. 


UNION.  175 

However  that  may  be  hereafter,  Mormonism  is  now  a  fact 
of  practical  importance.  Shall  Utah  be  admitted  as  a  State  ? 
Shall  it  have  two  votes  in  the  Senate  ?  Shall  pol  jgamists,  and 
the  subjects  of  Brigham  Yomig,  and  the  sectarians  of  a  mon- 
strous superstition,  help  to  make  a  President  for  us,  and  share 
in  tlio  authority  that  rules  the  interests  and  destiny  of  this 
rich,  educated,  and  civilized  nation  ?  Have  the  American 
people  no  power  to  avoid  the  contamination  of  such  a  fellow- 
ship, or  the  degradation  of  such  a  control  ?  Surely  it  is  one 
of  the  "exigencies  of  the  Union"  to  refuse  companionship  with 
pagans  and  polygamists,  Avith  the  deluded  followers  of  an  im- 
postor, and  the  blind  worshippers  of  an  absurd  faith.  The 
animating  principle  of  our  Constitution  is  liberty,  and  they  are 
the  abject  slaves  of  a  despot.  We  have  built  our  house  on  the 
rock  of  Christianity,  and  they  are  the  idolaters  of  falsehood. 
They  cannot  participate  either  in  our  religion,  our  liberty,  or 
our  civilization,  and  are  unable  to  share  our  destiny  or  our 
hopes.  Yet  the  impudent  claim  of  Utah  to  be  received  into 
the  fellowship  of  the  Union  has  many  advocates.  Strict  con- 
structionists interpret  the  word  '■''may''  used  in  the  Constitu- 
tion to  mean  '"'  shall:"  but  reason  and  common  sense  read  it 
as  it  was  wa-itten,  and  in  accordance  Avith  the  eternal  laws  of 
man's  nature. 

The  country,  however,  presents  other  cases  more  difficult 
than  that  of  Utah.  Mormonism,  when  no  longer  upheld  by 
the  talents  of  Brigham  Young,  will  probably  decline,  and  gra- 
dually disappear.  It  is  nourished  by  no  perennial  fountains 
springing  from  the  qualities  of  race,  the  traditions  and  cus- 
toms of  the  past,  or  the  interests  of  the  present.  All  these 
influences  oppose  it,  and  it  is  scarcely  possible  that  it  should 
resist  the  force  of  example,  the  light  of  civilization,  and  the 
current  of  opinion,  when  these  reach  the  distant  region  where 
it  is  seated.  We  should  let  it  alone  for  the  present,  and  Avait 
the  indications  of  the  future,  satisfied  with  this, — that  the  union 
of  Mormonism  with  liberty  and  Christianity  is  unlawful,  un- 
holy, and  impossible. 

So  also  is  a  permanent  union  impossible  betAveen  civiliza- 
tion and  barbarism,  betAvecn  a  groAving  and  advancing  people 


17G  THE     TRIAL     OF     THE     CONSTITUTION. 

and  one  decaying,  between  vigorous  healtli  and  chronic  dis- 
ease, between  knowledge  ever  seeking  new  light  and  ignorance 
preferring  darkness  to  light,  between  strength  alwa^'S  aspiring 
to  new  achievement  and  Aveakness  declining  to  lower  and 
lower  depths  of  contented  degradation.  Civilization  and  pro- 
gress depend  on  the  qualities  of  race.  Some  races  are  in- 
capable of  advancing  beyond  the  savage  state  ;  such  are  the 
North  American  Indians,  the  inhabitants  of  the  tropical 
islands,  the  aborigines  of  Australia.  Others  reach  a  certain 
point  of  material,  utilitarian  improvement  and  there  stop,  as 
the  Chinese,  the  Japanese,  the  Mexicans  and  Peruvians. 
Others  have  a  limited  capacity  for  amelioration  whilst  guided 
and  sustained  by  the  superior  mind  of  the  white  race,  like  the 
negro.  Civilization  in  its  true  sense,  which  includes  moral,  in- 
tellectual and  material  advancement,  literature,  the  useful  and 
the  fine  arts,  free  government  and  Christianity,  belongs  to  the 
white  race,  and  to  its  branches  in  very  different  proportions. 

Of  these  the  Teutonic  is  now  generally  admitted  to  be  the 
highest  type  of  man.  It  alone  is  capable  of  maintaining 
liberty  combined  with  order,  of  the  mechanical  inventions  and 
applications  which  control  the  forces  of  nature  and  supply  the 
means  of  comfort  and  refinement,  of  constant  aspirations  and 
constant  efforts  for  a  better  and  higher  life.  The  North,  as 
it  was  the  birthplace,  is  also  the  congenial  home  of  this 
highly  endowed  race.  It  does  not  flourish  in  the  South. 
Whether,  as  some  think,  because  of  the  climate,  or  according 
to  others,  because  of  contact  and  intercourse  with  the  dark 
races  of  the  South,  when  transplanted  there  it  dwindles  and 
decays,  loses  its  energy,  its  aspirations,  its  industry,  its 
powers  of  progress  and  love  of  freedom.  It  exhibits  a  con- 
stant tendency  to  sink  to  the  Southern  level,  to  become 
merged  in  the  Southern  races,  and  can  only  be  sustained 
above  and  separate  from  them  by  connections  with  the  North 
and  fresh  supplies  of  Northern  force  and  ability. 

Without  entering  into  the  discussion  of  ethnological  theo- 
ries, it  may  be  said  that  science,  history  and  tlio  present 
aspect  of  the  world  show  that  the  laws  of  nature  separate 
mankind    into    different   races,    distinctly    marked    by   per- 


UNION.  177 

mancnt  characteristics,  and  that  to  these  races  have  been 
allotted  different  portions  of  the  earth.  The  laws  of  nature 
execute  themselves,  and  this  ranking  of  races  and  division 
of  territory  is  guarded  by  inexorable  penalties.  Hybrids  are 
not  prolific  and  are  deficient  in  the  strong  qualities  of  either 
parent  source.  The  food  and  climate  which  nourish  one  race 
are  injurious  to  another.  The  wants  of  each  are  satisfied, 
its  qualities  developed,  its  energies  active  only  in  its  appropri- 
ate sphere.  The  contact  of  any  tAvo  is  injurious  to  botli.  The 
result  is  subjugation  of  one  or  the  other,  amalgamation  and 
degradation.  This  is  more  especially  the  case  Avith  the  four 
great  and  more  strongly  marked  divisions,  the  white,  the  black, 
the  yelloAv  and  the  copper-colored.  Their  natures  are  dis- 
similar and  have  been  so  in  all  that  we  know  of  the  past.  We 
may  presume  that  they  will  be  so,  in  all  that  Ave  can  knoAv  or 
can  provide  for  of  the  future. 

Let  us  leaA'C  theories  or  rather  apply  them  to  practical 
interests.  It  is  evident  that  we  have  not  merely  a  geographi- 
cal North  and  South.  We  have  a  Southern  climate  and  aa'c 
haA-e  the  black  race.  We  have  the  sun  and  soil  suited  to  that 
race,  and  therefore  it  is  here.  It  groAvs  and  thrives  in  the 
South  as  it  does  in  Africa.  It  was  taken  to  the  North,  but  did 
not  flourish  there  and  hastened  constantly  southward,  Avhere  it 
is  concentrating  its  dusky  millions.  The  Saxon  grows  and 
thrives  in  the  North.  He  too  has  gone  to  the  South.  Does 
he  flourish  there  ?  Does  he  expand  to  the*  full  capacity  of  his 
nature  ?  Does  he  advance  in  his  appointed  path  to  higher  and 
nobler  destinies  ?  Does  he  send  forth  luxuriant  branches 
covered  with  the  blossoms  and  fruits  that  he  Avas  born  to  pro- 
duce, science,  arts,  liberty,  Avealth  and  refinement  ?  Gloomy 
statistics  ansAver  these  questions.  When  the  thirteen  original 
States  sat  in  convention  and  made  the  Constitution,  there  was 
no  great  disparity  in  the  condition  of  North  and  South.  Look 
at  them  noAv.  They  are  far  asunder.  Between  them  is  the 
ever  Avidening  gulf  that  separates  advancement  from  stagnation 
and  decay.  Where  are  the  commerce,  the  manufactures,  the 
improved  and  productive  agriculture  of  the  country  ?  Where 
the  great  cities,  the  flourishing  toAvns  filled  Avith  Avealth  and 

12 


178  THE    TRIAL    OF    THE    CONSTITUTION. 

luxury  and  adorned  with  taste  ?  Where  are  the  ships  and 
mills  and  machinery,  the  fertile  and  embellished  farms  ? 
"Where  the  colleges  and  schools,  the  galleries  of  art,  the 
churches  and  charities  ?  Where  the  publishers,  printers  and  the 
influential  press  ?  Where  the  authors,  the  painters  and  sculp- 
tors ?  These  things  constitute  civilization,  and  they  are  all 
in  the  J^orth.  Why  ?  The  answer  is  twofold  and  plain 
enough.  The  Saxon  cannot-  labor  in  the  South,  and  these 
things  are  the  products  of  labor.  The  negro  can  labor  there, 
but  he  cannot  make  these  things. 

Consider  the  immense  significance  of  these  two  facts.  Is 
not  work  of  the  body  and  of  the  mind  man's  chief  blessing  and 
mission  in  this  world.  What  is  it  that  brings  order  out  of 
chaos,  that  makes  the  earth  habitable,  that  surrounds  life  with 
ease,  comfort  and  beauty,  that  supplies  intellectual  wants,  and 
cultivated  taste,  but  work  ?  And  is  not  idleness  the  parent  of 
every  vice  ?  The  white  man  cannot  woik  in  the  South ;  that 
is  to  say  he  does  not  love  work.  The  climate  indisposes  him 
to  labor,  and  he  will  not  work  whilst  he  has  the  negro  to  work 
for  him.  The  industry  of  the  South  is  therefore  in  the  hands 
of  a  race  incapable  of  civilization.  IIoav  much  is  implied  in 
that !  Industry  is  rude  and  coarse.  There  is  no  mirid  in  it, 
no  invention,  no  intelligent  use  of  the  forces  of  nature  and 
adaptation  of  means  to  ends.  The  countless  productions  of 
skilled  labor  therefore,  which  constitute  material  civilization, 
do  not  belong  to  thl>  South.  They  are  taken  there  from  lands 
where  industry  is  mental  as  well  as  physical.  The  South 
cannot  convert  its  cotton  into  the  beautiful  and  useful  fab- 
rics that  clothe  the  world,  cannot  make  the  machinery  to 
weave  it,"  could  not  use  that  machinery,  cannot  build  ships  to 
carry  its  rude  products  away.  It  does  for  cotton  what  the 
natives  of  Africa  do  for  it,  and  no  more,  and  for  the  same 
reason.  The  Africans  in  Africa  can  only  grow  it  ;  the  Afri- 
cans in  the  South  can  only  grow  it.  Almost  the  whole  value 
of  the  cotton  crop  was  created  by  the  cotton  gin,  invented 
by  a  Northern  man. 

The  labor  of  the  working  race  of  the  South  brings  with  it 
none  of  the  blessings  of  labor.     It  is  not  only  ignorant  and 


UNION.  179 

rude,  but  it  is  not  accompanied  l)y  self-respect  and  stimulated 
by  hope.  The  laborer  cannot  aspire,  cannot  respect  himself, 
for  he  is  a  slave.  He  is  not  a  citizen  or  one  of  the  people  ;  he 
has  no  country,  no  government,  no  laws.  He  could  not  have 
them  if  he  were  free.  He  never  had  them  in  Africa,  he  will 
never  have  them  here.  He  is  planted  irrevocably  in  the 
South,  I  mean  in  the  extreme  South,  the  Cotton  States. 
Never,  therefore,  in  the  South  can  the  word  industry  mean 
what  it  does  with  us.  It  can  never  be  associated  with  ideas 
of  ingenuity  and  skill,  of  knowledge  and  intelligence,  of  con- 
stant progress  and  general  comfort,  more  and  more  Avidely  dif- 
fused among  the  people.  Take  from  the  North  our  laboring 
class  and  substitute  for  them  the  negro,  whether  free  or  en- 
slaved, and  how  soon  our  onward  career  would  be  checked. 
What  a  mass  of  mind  and  energy,  what  lifeblood,  Avould  be 
taken  from  our  social  system !  What  would  become  of  our 
mills  and  workshops  and  well-tilled  farms,  of  our  busy  villages 
and  rising  cities  ?  These  things  must  exist  in  the  mind  of  the 
workman  before  they  can  be  produced  by  his  hand. 

Not  only  can  there  be  no  respectable  laboring  class  where 
labor  is  in  the  hands  of  an  inferior  race  and  of  slaves,  and  is 
therefore  despised,  but  there  cannot  be  the  large  and  prosper- 
ous order  which  goes  by  the  name  of  the  middle  classes ;  mas- 
ter workmen,  machinists,  builders,  farmers,  tradesmen,  manu- 
facturers,— educated,  active,  enterprising  and  rich ;  the  men 
who  direct  the  great  business  and  control  the  great  interests 
of  the  country.  Diversified  industry  produces  and  sustains 
these.  Without  commerce  and  manufactures  they  cannot 
exist.  Without  skilled  and  intelligent  labor  they  cannot 
exist.  Give  them  slave  labor  or  negro  labor  as  a  support  and 
they  would  disappear.  Take  this  class  from  Northern  society 
and  its  prosperity  and  power  would  wither  away. 

What,  then,  are  the  elements  of  Southern  society?  An  idle 
white  race,  dependent  on  the  labors  of  the  negro,  the  negro 
himself,  and  a  third  class  knoAvn  as  "  poor  white  trash," 
rapidly  increasing.  All  white  men  cannot  own  land  and  ne- 
groes, cannot  be  planters,  merchants,  doctors  and  attorneys 
at  law.     There  must  be  large  numbers  that  in  some  way  or 


180  THE    TRIAL     OF    THE     CONSTITUTION. 

the  other  live  by  physical  labor.  But  physical  labor  is  de- 
spised, and  there  is  not  much  demand  for  it.  Capital  is  the 
employer  of  labor,  and  capital  in  the  South  owns  its  labor. 
The  productions  of  skilful  industry  are  brought  to  it  in  the 
ships  that  take  away  its  cotton.  The  demand  for  ingenuity, 
for  thought  in  labor,  is  small.  Mere  bodily  toil  is  demanded, 
and  that  is  supplied  by  the  negro.  If  the  white  man  works 
therefore  at  all,  he  must  work  like  the  negro,  with  his  body 
only  ;  he  must  be  contented  to  live  as  the  negro  lives,  he  must 
be  the  competitor  of  the  negro,  and,  so  far  as  his  nature  can, 
sink  to  his  level.  And  such  has  been  his  fate.  The  words 
"poor  white  trash"  are  a  term  of  contempt,  even  in  the  mouths 
of  slaves. 

And  the  ruling  class,  the  planter,  the  professional  man,  the 
merchant  of  the  towns,  supported  by  cotton,  what  has  been 
their  fate  ?  Do  they  flourish  ?  Do  they  rise  higher  and 
higher  in  knoAvledge  and  refinement  ?  Are  they  enterprising, 
adventurous,  energetic  ?  Are  they  creating  a  great  empire  at 
the  South,  durable  and  strong,  advancing  in  science  and  wealth 
and  embellished  by  art  ?  Are  their  cities  and  towns  growing 
in  size  and  beauty  ?  Do  churches,  colleges  and  schools  mul- 
tiply ?  Who  are  their  philosophers,  poets,  painters,  and  men 
of  letters  ?  Is  not  even  their  breed  of  statesmen  extinct  ? 
At  every  generation  they  lose  some  of  the  high  qualities  of 
their  blood.  Born  to  command  an  inferior  race,  with  the 
persons  of  men  and  women  subject  to  their  absolute  power, 
they  are  educated  to  arrogance,  pride,  sensuality  and  cruelty. 
Their  wealth  is  exotic.  It  is  not  the  result  of  their  own 
thought  or  skill,  but  of  the  rude  labor  of  those  who  are  not 
ranked  among  their  people,  and  of  foreign  skill.  The  whole 
value  of  their  chief  production  is  given  to  it  by  other  hands. 
Destroy  their  monopoly  of  cotton  and  they  would  be  poor. 
They  are  becoming  incapable  of  free  government.  Free 
thought,  free  speech  and  a  free  press,  are  inconsistent  with 
slavery.  To  govern  tlic  negro  they  must  govern  also  the  non- 
slaveholder,  and  oligarcliy  supported  by  military  power  must 
ere  long  supplant  rejmblicanism. 

It  is  impossible  to  resist  natural  laws.     The  Saxon  race 


UNION.  181 

does  not  belong  to  the  Soutli.  Liberty,  labor,  progress,  are 
essential  to  his  healthy  life  and  growth.  He  is  really  an  alien 
in  the  South,  which  to  the  negro  is  a  congenial  home.  The 
climate  and  the  negro,  therefore,  unite  to  destroy  the  white 
race.  They  enfeeble  and  degrade  it.  Such  has  ever  been  its 
fate,  sooner  or  later,  where  it  has  attempted  to  colonize  the 
South.  The  dark  races,  assisted  by  the  sun,  are  more  than  a 
match  for  Northern  energy. 

Now  what  is  the  practical  bearing  of  these  truths  on  our 
affairs  ?  We  have  four  millions  of  negroes  in  the  South. 
They  are  there  forever.  They  cannot  be  sent  away.  It  is  a 
congenial  home  for  them,  where  they  thrive  and  grow  and 
where  they  have  founded  a  new  Africa.  They  increase  faster 
than  the  white  race.  Soon  they  will  be  eight  millions,  ere 
long  sixteen  millions.  The  population  of  mixed  blood  also  in- 
creases. A  wide-spread  degradation  of  race  threatens  the 
South,  a  mingling  of  races  and  colors,  like  that  which  has 
ruined  all  hope  of  civilization  in  South  America,  Nothing 
sustains  the  Saxon  race  in  the  South  now  but  the  high  price 
of  Southern  productions,  a  support  that  new  fields  of  supply 
or  the  discovery  of  another  vegetable  fibre  may  at  any  time 
destroy. 

Already  the  climate  and  the  negro  have  created  a  vast  dis- 
parity in  all  the  elements  of  civilization  between  the  North 
and  the  South.  Already  they  have  in  the  South  converted  a 
large  portion — a  majority — of  the  Saxon  race  into  "poor  white 
trash,"  and  are  rapidly  dragging  the  others  into  a  slough  of 
sensuality,  ignorance  and  sloth.  Already  they  have  destroyed 
free  government,  and  have  checked  the  growth  of  industry, 
science  and  the  arts.  The  North  will  not  pause  in  its  career. 
As  Africa  increases  its  empire  in  the  South,  the  difference  be- 
tween the  two  sections  must  become  more  clearly  marked. 
At  length  a  point  must  be  reached  when  union  on  equal  terms 
will  be  impossible.  Africa  means  barbarism,  and  there  can 
be  no  union  between  civilization  and  barbarism.  A  mixture 
of  races,  composed  of  negroes,  mulattoes,  quadroons,  degene- 
rate Saxons,  Spaniards,  French  and  Mexicans,  means  degra- 
dation, decay  and  death, — the  extinction  of  national  life,  of 


182  THE    TRIAL     OF    THE    CONSTITUTION. 

all  elements  of  strength  and  progress.  Union  and  equality 
■with  such  would  be  for  the  Northern  people  impossible  as  they 
■would  be  -with  the  people  of  Mexico  or  A^enezuela. 

A  degenerate  race  cannot  be  permitted  to  govern  the  North 
and  to  decide  for  it  the  great  questions  of  national  policy. 
There  can  be  no  equality  bct'ween  parties  unequal  by  nature. 
There  can  be  no  fellowship  between  persons  different  by  na- 
ture. There  can  be  no  j^int  ownership  that  would  destroy 
the  thing  owned.  There  can  be  no  government  by  an  inferior 
Over  a  superior.  Barbarism  cannot  share  the  destiny  of  civi- 
lization. Vigorous  and  healthy  life  will  not  be  bound  to  disease 
and  decay. 

As  the  negro  and  the  climate  assert  their  power  over  the 
■white  race  in  the  South,  its  hold  on  the  North  must  gradually 
be  loosened,  even  should  the  Union  be  restored  after  the  pre- 
sent war.  A  time  must  come,  therefore,  Avhen  one  of  two 
things  will  happen  :  either  the  Southern  States,  that  is,  the 
Cotton  States,  will  be  excluded  from  a  share  in  the  central 
power  and  be  governed  as  subject  provinces,  or  they  will  be 
excluded  from  the  Union. 

Justice  will  demand  this,  because  they  will  not  be  able  to 
perform  their  part  in  the  Union.  The  security,  the  prosper- 
ity, the  freedom  of  the  majority  will  demand  it,  because  these 
States,  if  the  causes  already  mentioned  continue  to  operate, 
by  sharing  in  the  central  authority,  would  corru})t  and  de- 
stroy it. 

Clearly,  therefore,  such  a  change  may  be  required,  and 
unless  the  Government  has  tlie  power  to  make  it,  it  cannot  be 
"  adequate  to  the  exigencies  of  the  Union." 


I  have  thus  endeavored  to  show  that  history,  English  analo- 
gies, the  fundamental  principles  of  all  politics,  and  the  lan- 
guage of  the  Constitution,  prove  that  the  central  Government, 
representing  a  majority  of  the  States  and  the  people,  has  legal 
power  over  the  Union,  to  preserve  it,  and  to  limit,  extend  or 
diminish  its  size  as  justice  and  necessity  may  demand.     If  the 


UNION.  183 

right  to  this  power  be  doubtful,  the  present  crisis  proves  that 
it  is  necessary,  and  that  only  by  the  prudent,  just  and  deter- 
mined exercise  of  the  whole  of  it,  can  a  Union  worth  having 
be  saved  and  anarchy  averted.  The  Government  must  take 
the  power  and  must  be  sustained  by  the  people  or  we  perish. 
It  belongs  to  the  Government  by  eternal  laws  which  cannot 
be  violated  wnth  impunity.  A  nation  has  a  right  to  Avhatever 
is  necessary  for  its  preservation  and  progress,  and  we,  the 
people  of  1862,  have  a  right  to  such  a  Union  as  is  consistent 
with  our  safety,  civilization  and  happiness,  whatever  our  an- 
cestors of  1787  may  have  thought  or  said. 

When  they  set  about  the  task  of  saving  the  Union,  they 
found  it  in  imminent  danger  because  the  States  had  too  much 
power,  and  the  central  Government  too  little,  or  rather  none 
at  all.  Accordingly  they  created  a  National  Government 
with  authority  to  make  and  execute  supreme  laws,  to  impose 
taxes,  to  maintain  an  army  and  navy,  to  declare  war,  to  make 
treaties,  to  perform,  in  short,  all  the  usual  functions  of  a  Go- 
vernment acting  upon  persons  and  property.  At  the  same 
time  they  prohibited  to  the  States  every  power  deemed  incon- 
sistent with  such  a  Government.  They  did  not  declare  ex- 
pressly that  no  State  should  have  the  right  to  overturn  that 
Government,  or  to  destroy  the  Union  it  was  intended  to  pre- 
serve. A  declaration  of  this  sort  would  seem  superfluous, 
because  such  a  privilege  would  be  inconsistent  with  the  very 
purpose  for  which  the  Constitution  was  made.  To  say  that 
the  object  of  the  Constitution  was  to  create  "  a  more  perfect 
Union"  and  then  that  the  Government  had  power  to  preserve 
it,  to  declare  that  Congress  had  authority  to  make  laws  and 
then  that  these  laws  must  be  obeyed,  was  unnecessary,  and 
would  not  have  accorded  w^ith  the  comprehensive  brevity  ap- 
propriate to  such  a  document. 

Nevertheless  it  is  unfortunate  that  a  clause  to  this  effect 
w^as  not  introduced,  for  the  perverse  ingenuity  of  faction  has 
discovered  that  the  Government  has  no  power  to  preserve 
itself  and  the  Union,  because  none  was  expressly  granted. 
The  gross  absurdity  of  such  a  doctrine  has  not  prevented  its 
becoming  the  basis  of  a  powerful  party,  that  claims  for  any 


184  THE    TRIAL    OF    THE     C  ONST  IT  U  TION. 

State,  the  right,  at  its  own  will  and  pleasure,  to  set  the  Govern- 
ment at  defiance,  and  without  the  consent  of  the  other  States  or 
consultation  Avith  them,  to  destroy  the  Union.  The  advocates 
of  this  theory  go  even  further.  Not  content  with  claiming 
for  a  State  the  right  of  separation,  they  contend  that  hy  reason 
of  such  an  act,  the  legal  tie  Avhicli  binds  the  others  is  severed, 
the  central  Government  annihilated,  and  each  State  at  liberty 
to  form  such  combination  as  it  pleases.  Not  only  may  a  single 
State  withdraw,  but  at  its  bidding  the  Union  can  be  broken 
into  as  many  pieces  as  there  are  States,  Avhatever  the  wishes 
of  the  people.  When  thus  broken  it  cannot  be  reunited,  save 
by  another  convention  to  make  another  Constitution. 

These  arc  principles  not  of  Government  but  of  misrule,  not 
of  life  but  of  death,  not  of  union  but  of  discord.  One  of  their 
fruits  is  this  Southern  rebellion.  These  doctrines  have  many 
Northern  advocates,  friends  of  the  Southern  rebellion,  and 
unless  rooted  out  with  a  determined  hand,  anarchy  in  the 
North  will  be  another  of  their  fruits. 

We  thus  find  ourselves  in  the  position  of  our  fathers  in 
1787.  We  are  threatened  with  anarchy  and  disunion,  because 
central  power  is  too  weak  and  local  power  too  strong.  We 
must  apply  the  same  remedy  which  they  applied :  strengthen 
the  General  Government  and  enforce  the  obedience  of  the 
States.  We  need  not  for  this  purpose  make  another  Constitu- 
tion. That  Avhich  we  already  possess,  liberally  construed,  is 
all-sufficient. 

The  present  rebellion  has  a  twofold  character.  It  is  an 
attack  on  the  dignity  and  authority  of  the  Government,  and 
it  is  an  eifort  to  destroy  the  Union  betAveen  the  Southern  and 
Northern  States,  and  between  all  the  States.  The  Avar  made 
by  the  GoA'ernment  has  therefore  a  double  ])urpose  :  to  assert 
the  majesty  and  legitimate  poAver  of  the  Government,  and  to 
preserve  the  Union. 

The  Southern  people  have  injured  their  cause  by  the  manner 
in  AV'hich  they  have  exercised  their  pretended  right  of  seces- 
sion. Granting  for  the  sake  of  argument  that  right,  it  is  an 
ungracious  act  at  best  to  AvithdraAv  from  the  Union.  It  neces- 
sarily implies  injury  to  the  interests  and  the  feelings  of  the 


UNION.  185 

other  States  and  dissatisfaction  >vith  the  Government.  It  im- 
plies loss  of  power  and  territory  to  the  nation.  When  coupled 
with  the  doctrine  that  the  withdrawal  of  a  State  severs  the 
tie  that  binds  the  others  together,  the  right  pf  secession  im- 
plies the  right  to  utterly  destroy  the  nation  and  its  Govern- 
ment. These  are  high  powei's  to  be  exercised  by  a  single 
State,  or  even  by  a  majority  of  the  States,  Is  it  unreasonable 
to  expect  that  those  who  use  them  should  do  their  spiriting 
gently  ?  Arc  the  States  whose  Union  with  each  other  is  to 
be  thus  sundered  against  their  will,  and  whose  interests  are  to 
be  sacrificed, — is  a  Government  which  is  to  be  thus  suddenly 
extinguished, — is  a  great  nation  which  is  to  be  in  this  summary 
manner  blotted  out  from  the  Avorld's  roll  of  nations, — are  all 
these  momentous  concerns,  and  the  deep  feelings  connected 
with  them,  and  the  profound  attachments  they  inspire,  and  the 
large  hopes  that  hang  upon  them,  entitled  to  no  consideration, 
no  comity,  no  courtesy  ?  A  haughty  demand  and  a  haughty 
threat ; — must  the  Government  abdicate  its  power,  and  the 
Union  fall  to  pieces  before  these,  like  the  walls  of  Jericho  at 
the  blast  of  Joshua's  horns  ? 

All  rights  known  to  the  law  have  some  formal  and  orderly 
manner  appointed  for  their  assertion,  all,  it  seems,  except  this 
right  of  secession.  It  may  be  preceded  by  secret  conspiracy  and 
official  breach  of  trust,  may  be  veiled  by  lying  professions  of 
loyalty  up  to  the  moment  of  action,  and  may  be  announced 
by  words  of  insult  and  deeds  of  violence  and  outrage.  Such 
crimes  cannot  accompany  the  exercise  of  any  legal  right  or  be 
authorized  by  any  law.  When  the  leaders  of  Southern  poli- 
tics covertly  stripped  of  its  defences  the  Government  of  which 
they  were  the  sworn  officers  ;  when  they  seized  the  forts,  ar- 
senals, mints,  ships,  and  all  other  property  of  the  nation  on 
which  they  could  lay  their  felonious  hands  ;  when  they  openly 
enlisted  armies  and  when  they  fired  on  our  flag,  they  aban- 
doned the  right  of  secession.  They  instantly  made  another 
issue  between  themselves  and  the  Government  in  which  that 
right  had  no  part.  They  raised  another  question,  involving 
interests,  compared  with  which  the  loss  of  all  the  South  was 
not  Avorth  a  moment's  thought.     They  cast  off'  the  character 


186  THE     TRIAL     OF     THE     CONSTITUTIOX. 

of  representatives  of  States,  making  a  claim  which,  whether 
legal  or  illegal,  might  be  reasonable  and  just,  and  if  respect- 
fully urged,  was  entitled  to  a  respectful  consideration,  and  be- 
came criminals,  whom  it  was  the  duty  of  the  Government  to 
punish.  They  proflfered  to  the  Government  not  legal  demands 
.to  be  discussed,  but  rebellion  to  be  resisted  at  all  hazards,  and 
whether  the  claims  were  legal  or  illegal,  just  or  unjust.  They 
insulted  the  other  States  by  disregarding  their  interests, 
opinions  and  wishes,  by  defying  the  authority  of  their  Go- 
vernment, and  by  outraging  their  flag.  What  has  the  right 
of  secession  to  do  with  such  a  case  ?  Granting  that  its  magic 
touch  obliterates  the  Government,  and  breaks  the  Union 
into  fragments,  surely  the  Constitution  must  have  intended 
these  dismal  results  to  be  brought  about  in  some  way  consis- 
tent Avith  order  and  law,  with  the  honor  and  self-respect  and 
ultimate  interests  of  the  people.  It  is  impossible  that  Wash- 
ington, Hamilton,  Jay,  Dickinson,  Franklin,  and  the  other 
founders,  meant  to  justify  sedition,  conspiracy,  treason  and 
rebellion,  or  to  create  a  Government  without  power  to  resist 
these,  and  whose  duty  it  is  to  vanish  at  their  bidding ;  or  that 
they  intended  to  make  a  Union  with  no  judgment,  no  will,  no 
power  over  its  own  destiny,  but  which  may  be  suddenly 
plunged  into  anarchy  at  the  command  of  one  of  its  own  mem- 
bers. The  Confederation  was  a  helpless  Government  and  a 
loose  Union  ;  but  a  Government  that  cannot  draw  a  sword 
to  resist  armed  violence,  a  Union  that  must  dissolve  at  a 
threat,  as  snow  melts  at  the  touch  of  fire,  would  be  weaker 
even  than  the  Confederation,  and  more  contemptible. 

When  the  Government  was  thus  sommoned  by  an  armed 
rebellion  to  abdicate  its  authority,  Mr.  Buchanan  was  the 
President.  Neither  he  nor  his  Attorney-General  could  find 
in  the  Constitution  any  power  to  make  Avar  upon  a  State,  so 
they  said,  and  accordingly  the  President  did  virtually  abdicate 
his  authority,  for  he  refused  to  exercise  it,  though  he  remained 
nominally  in  office  to  the  end  of  his  term.  When  Mr.  Lincoln 
came  into  power,  he  discovered  a  clause  Avhich  told  him  that 
it  Avas  his  duty  to  "  take  care  that  the  hiAvs  be  faithfully  ex- 
ecuted,"   and  another,  Avhich   declares  that  to  "levy  Avar" 


I 


UNION,  187 

against  the  United  States,  or  to  "  adhere  to  their  enemies, 
giving  them  aid  and  comfort,"  is  treason.  He  remembered, 
moreover,  that  he  had  taken  an  oath  "  to  preserve,  protect 
and  defend"  the  Constitution,  in  which  his  duty  was  thus 
clearlj  laid  down.  As  the  laws  act  directly  upon  persons  and 
not  at  all  upon  States,  he  probably  thought, — if  he  thought 
about  a  distinction  so  frivolous, — that  to  execute  the  law  upon 
persons  was  not  making  Avar  upon  a  State.  He  knew  that 
levying  war  against  the  United  States  was  treason,  and  not 
less  so,  because  the  guilty  parties  were  Governors  of  States 
or  members  of  State  Legislatures  or  conventions.  He  knew, 
also,  that  it  was  his  province  to  defend  the  property  of  the 
nation  from  all  hostile  aggressions,  that  to  enable  him  to  do 
so,  he  Avas  Commander-in-chief  of  the  Army  and  Navy. 

Mr.  Lincoln,  tlierefore,  refused  to  abdicate.  He  could  see 
no  right  of  secession  in  treason  and  rebellion.  He  could 
see  nothing  but  a  crime  to  be  punished  and  an  attack  to  be 
resisted.  Military  force  became  necessary  to  execute  the  laAVS 
and  he  employed  it.  The  contagion  of  the  rebellion  spread 
over  a  great  section,  and  its  ranks  swelled  into  a  powerful 
army.  Congress  put  a  large  army  at  the  disposal  of  the  Pre- 
sident. These  armies  have  met  on  many  a  bloody  field,  and 
a  contest  between  great  armies  is  war.  A  contest  between  a 
Government  and  a  large  portion  of  its  people  is  civil  war,  and 
such  is  this  now  raging  in  our  country.  It  is  not  a  contest 
between  the  Government  and  the  States.  The  authority  of 
the  central  Government  acts  not  upon  States,  but  upon  indi- 
viduals. That  is  the  chief  difference  between  it  and  the  old 
Confederacy.  A  State  cannot  be  guilty  of  treason  or  rebel- 
lion. Traitors  and  rebels  are  not  corporations,  but  men,  and 
as  such  amenable  to  the  law. 

The  primary  object  of  the  war,  therefore,  is  to  vindicate 
tlie  outraged  dignity  and  honor  of  the  Government,  and  to 
maintain  the  authority  of  its  violated  laws.  Unless  it  can  do 
this,  it  must  lose  caste  and  character  as  a  Government,  confi- 
dence at  home  and  reputation  abroad.  A  Government  that  is 
defied  and  insulted  Avith  impunity,  that  yields  to  threats  and 
makes  concessions  to  armed  rebellion,  has  no  right  to  exist, 


188  THE    TRIAL    OF    THE     CONSTITUTION. 

cannot  indeed  long  exist.  It  is  sick  with  a  fatal  disease,  has 
no  longer  any  useful  part  to  play  among  the  living,  and  the 
sooner  it  dies  and  is  shovelled  away  out  of  sight  the  better. 
A  Government  without  power  is  a  sham  and  a  lie,  and  the 
question  which  the  Southern  people  presented  to  the  Northern 
was,  not  shall  we  withdraw  from  the  Union,  but  shall  your 
Government  become  a  sham  and  a  lie, — a  very  different  and  far 
more  serious  question.  It  would  be  a  misfortune,  no  doubt, 
to  lose  our  Southern  territory,  but  that  loss  Avould  be  a  trifle 
compared  with  the  ruin  of  having  no  Government,  or  the 
mockery  of  a  Government,  that  could  not  protect  itself  or  the 
nation,  or  command  obedience  or  inspire  the  feeling  of'  secu- 
rity at  home  or  respect  abroad. 

Mr.  Lincoln  answered  the  question  thus  audaciously  put  by 
the  leaders  of  the  rebellion.  He  declared  that  the  Govern- 
ment of  the  United  States  still  existed,  and  he  announced  the 
fact  to  them  and  to  the  world  in  resounding  cannonades,  whose 
meaning  is  plain  enough.  What  they  say  is,  that  the  laws 
must  be  executed  in  Charleston  and  Savannah,  and  Richmond 
and  New  Orleans,  in  order  that  they  may  have  authority  in 
Philadelphia  and  New  York,  in  Chicago  and  San  Francisco ; 
that  our  flag  must  fly  again  at  Fort  Sumter,  that  it  may  be 
honored  on  the  high  seas  and  in  foreign  p'orts  ;  and  that  when 
this  Government  discusses  the  right  of  secession,  it  will  not  be 
Avith  secret  plotters  of  treason  and  armed  rebels  to  its  authority. 

The  right  of  secession  has  therefore  never  been  presented 
by  the  South  to  the  consideration  of  the  Government  or  of  the 
Northern  people.  Whilst  loudly  asserting  it,  the  South  have 
not  depended  on  its  legality,  but  have  resorted  to  other  means, 
so  destructive,  that  the  issue  was  necessarily  made  upon  those 
means.  Neither  has  the  South  presented  a  case  for  the  disso- 
lution of  the  Union  between  them  and  the  other  States,  by 
mutual  consent.  Had  Southern  members  of  Congress,  like 
the  Scotch  members  of  Parliament  in  the  instance  already  re- 
ferred to,  brought  in  a  bill  to  dissolve  the  Union,  the  merits 
of  the  claim  might  have  been  discussed,  and  the  debate  would 
have  brought  out  the  real  sentiments  of  the  country  North 
and  South. '   Was  the  Union  a  bui'den  and  a  misfortune  to  the 


UNION.  189 

South  ?  Had  the  rule  of  the  central  Government  been  unjust 
and  oppressive?  Were  the  well-ascertained  opinions  of  the 
Northern  people  in  relation  to  slavery  such  as  endangered  the 
safety  and  the  interests  of  the  South  ?  Was  there  a  proba- 
bility of  a  Southern  Confederacy  being  established  that  could 
maintain  its  independence  as  a  nation  ?  What  injurious  con- 
sequences would  the  separation  cause  to  the  North,  and  could 
they  be  avoided  ?  Above  all,  what  were  the  wishes  and  calm, 
deliberate  judgment  of  the  Southern  people  on  the  subject, 
and  in  how  many  of  the  States  did  they  really  desire  separa- 
tion, and  by  what  majorities  ? 

These  and  other  important  questions  would  have  been  duly 
considered.  Had  they  been  answered  favorably  to  the  claim, 
with  no  means  of  satisfactory  adjustment  possible,  it  is  not 
hazarding  much  to  say  that  the  demand  for  separation  Avould 
have  been  yielded.  It  would  have  been  asking  indeed  a  great 
deal.  It  would  have  been  asking  Northern  manufactures  to 
give  up  a  right  to  the  cotton  crop  without  impost  or  restraint ; 
Northern  commerce  to  give  up  the  control  of  the  Gulf  coast ; 
the  Northwest  to  give  up  the  free  navigation  of  the  Mississippi 
and  the  command  of  its  outlet,  and  the  Northern  people  to 
give  up  their  undivided  share  and  interest  in  vast  and  fertile 
regions.  It  would  have  been  asking  a  nation  to  diminish  its 
power  and  resources,  and  to  permit  the  establishment  on  its 
border  of  another  nation  who  might  become  an  enemy,  who 
could  make  alliances  with  its  enemies  and  defeat  its  tariffs. 

All  this  would  have  been  implied  in  a  demand  for  Southern 
independence.  Nevertheless,  had  it  been  in  itself  reasonable 
and  just,  and  had  it  been  made  with  due  deference  to  the  sen- 
timents and  interests  of  the  North,  so  strong  is  the  love  of 
Americans  for  State  power,  so  universal  their  conviction  that 
a  people  has  a  right  to  choose  or  change  their  government  at 
will,  that  most  probably  such  a  demand,  so  made,  would  not 
have  been  rejected.  If  rejected,  the  position  of  the  South 
would  have  been  much  better  than  it  is  now.  Even  now  it 
has  partisan  friends  and  allies  in  the  North.  In  the  case  sup- 
posed these  would  have  been  a  host.  Even  now  it  has  many 
sympathizers  in  Europe.     In  the  case  supposed  foreign  sym- 


190  THE    TRIAL    OF    THE     CONSTITUTION. 

patliv  would  ere  this  have  caused  recognition  of  Southern  inde- 
pendence, and  active  aid  to  secure  it. 

But  in  truth,  the  cause  of  the  South  had  none  of  these 
merits,  and  the  conspirators  did  not  dare  submit  it  to  the  scru- 
tiny of  the  nation  or  to  the  cahn  judgment  of  the  Southern 
people.  They  had  suffered  no  real  grievances.  So  far  from  hav- 
ing been  oppressed  by  the  central  Government,  they  had  almost 
always  controlled  it,  and  were  very  likely  to  control  it  again. 
At  the  very  moment  of  the  rebellion  they  had  a  majority  of 
the  Senate  and  a  powerful  party  of  allies  in  the  North.  The 
Union  was  a  benefit  to  the  Southern  people.  Under  its  guar- 
dian care,  its  one  supreme  and  cherished  institution  and  its 
chief  staple  grew  and'flourished  with  immense  annual  increase. 
The  Union  and  Northern  opinion  were  the  protectors  of  sla- 
very,— its  only  protectors  against  the  enlightened  spirit  of  the 
age.  The  Cotton  States  could  not  maintain  themselves  as  a 
separate  nation,  half  African  as  they  are,  and  without  manu- 
factures or  commerce,  but  would  become  a  dependency  of  some 
European  power.  More  than  all,  the  Southern  people  did  not 
desire  separation.  They  appreciated  the  value  of  the  Union, 
and  the  majority  in  every  State,  except  South  Carolina,  had  a 
free  expression  of  opinion  been  permitted,  Avould  have  rejected 
the  proposal  to  secede  from  it. 

But  this  Avas  not  permitted.  All  the  arts  of  practised  dema- 
gogues were  employed  to  prevent  it.  Inflammatory  harangues, 
boundless  falsehood,  ceaseless  agitation,  the  influence  of  a  domi- 
nant class  and  of  prominent  men,  were  actively  exerted  with- 
out success.  Official  authority  disregarded  the  wishes  of  the 
people,  and  conventions  instructed  to  vote  against  secession 
voted  for  it.  When  the  deed  was  done,  and  when  war  was  the 
result,  then  the  passions  generated  by  war,  more  especially 
in  an  invaded  country,  arrayed  large  numbers  of  the  people 
against  the  Union.  The  masses  of  the  South  are  ignorant  and 
poor.  They  are  easily  deluded  and  easily  led.  They  are  ac- 
customed to  the  guidance,  often  to  the  arrogant  dictation,  of 
a  small  class.  What  may  be  their  opinion  now,  how  far  the 
expression  of  it  may  be  restrained  by  a  revolutionary  govern- 


UNION.  191 

ment,  and  how  far  their  apparent  adherence  to  the  rebellion  is 
real,  cannot  be  known. 

As  secession  has  neither  law  nor  merit  to  support  it,  the 
Government  and  the  Northern  people  must  treat  it  as  a  rebel- 
lion to  be  quelled  and  an  attempt  to  desi;roy  the  Union  to  be 
resisted.  iVnother  object  of  the  war,  therefore,  is  the  preserva- 
tion of  the  Union. 


This  view  of  the  subject  is  so  full  of  difficulty  and  danger, 
that  all  thinking  men  must  regard  it  with  dismay.  Broken 
Unions  are  not  easily  restored.  They  are  like  pitchers  broken 
at  the  fountain.  Broken  marriages,  broken  friendships, — how 
can  they  be  again  cemented  with  the  old  love  ?  "A  brother 
oiFended  is  harder  to  be  won  than  a  strong  city,  and  their  con- 
tentions are  like  the  bars  of  a  castle."  Is  the  Union  one  of 
parchment  only  ?  Does  it  depend  wholly  on  the  Constitution, 
and  on  cunning  adjustment  of  central  and  local  power?  Are 
not  these  weak,  when  moral  bonds  are  wanting, — sympathy, 
similarity  of  manners  and  taste,  a  common  interest,  common 
objects  and  common  hopes  ?  And  have  not  these  been  long 
wanting  between  North  and  South  ?  Seven  years  of  war  fol- 
loAved  the  severance  of  the  union  between  our  ancestors  and 
England,  and  then  it  was  not  restored.  The  first  gun  fired  at 
Lexino-ton  broke  it  forever.  The  Convention  that  met  in  1787 
made  a  Constitution  "in  order  to  form  a  more  perfect  Union," 
not  to  mend  the  broken  links  of  one  that  had  been  severed. 
There  had  been  no  war  between  the  States, — no  battle-fields, 
sad  records  of  fratricidal  bloodshed  and  sectional  hate. 

Perhaps  the  Union  cannot  be  restored.  The  South  has 
shown  unexpected  force  and  unity  and  military  skill.  It  has 
been  victorious  in  many  combats.  It  may  be  assisted  by  Euro- 
pean intervention.  The  North,  notwithstanding  its  great  re- 
sources and  superior  strength,  may  yield  the  boon  of  indepen- 
dence, as  England  did,  rather  than  encounter  the  losses  and 
dangers  of  a  long  war. 

Perhaps  the  rebellion  may  be  crushed  and  its  armies  dis- 


192  THE    TRIAL    OF    THE    CONSTITUTION. 

persed,  yet  the  Soutliern  people  sullenly  refuse  to  return  to 
the  Union  and  participate  in  its  government ;  or  they  may  re- 
turn un-\villingly,  -with  simulated  loyalty  and  reluctant  obedi- 
ence, discontented,  ever  ready  to  revolt  again,  a  source  not  of 
strength  hut  of  weakness,  and  more  than  ever  a  divided  peo- 
ple,— a  Poland,  a  Hungary,  a  Venetia. 

INIay  not  the  Northern  people  say  they  desire  no  such  Union, 
no  such  companionship  ;  that  the  Union  they  require  is  one  of 
consent  and  mutual  good  will ;  that  they  will  not  live  on  equal 
terms  with  those  who  hate  them,  or  meet  them  as  representa- 
tives in  a  common  Government  ? 

In  either  of  these  cases,  where  is  the  line  of  separation  to 
be  drawn  ?  Is  it  to  include  in  the  South  the  Cotton  States 
only,  or  the  border  Slave  States  also,  or  some  of  them,  or  parts 
of  some  of  them  ?  A  most  important  question  for  the  North, 
for  on  it  depends  whether  we  shall  have  for  a  neighbor  and 
probable  enemy,  a  weak  or  a  powerful  nation. 

Another  question  still  more  important  is,  who  is  to  draw  the 
line  of  separation,  for  that  will  probably  determine,  whether 
the  country  is  to  be  divided  into  two  or  into  many  nations.  A 
united  North  would  make  a  great  empire,  rich  in  all  resources, 
full  of  life  and  vigor,  strong  enough  to  defy  the  world.  But 
an  East,  a  West,  a  middle  region,  and  a  South,  would  be  weak- 
ness for  each  and  perpetual  war.  Who  is  to  settle  that  ques- 
tion ?  The  States  themselves,  as  such,  or  a  convention  of 
the  States  ?  Either  plan  would  recognize  the  right  of  seces- 
sion, and  the  false  and  fatal  doctrine,  that  the  Union  once 
broken,  as  to  one  State,  is  broken  as  to  all.  Either  plan  would 
unsettle  men's  thoughts,  inspire  universal  alarm  (for  none 
could  know  what  the  others  would  do),  and  give  free  scope  to 
the  ambitious  designs  of  demagogues  and  the  insane  rage  of 
party  spirit.  In  such  a  crisis,  a  National  Government,  strong 
enough  to  make  itself  obeyed,  is  the  only  rock  of  safety ;  it 
alone  can  inspire  confidence  and  save  the  country  from  anarchy. 
The  Government  established  by  the  Constitution  has  power 
adequate  to  the  occasion.  It  has  power  to  preserve  the  Union, 
the  legal  Union,  the  Union  seceded  from  and  rebelled  against, 
the  whole  of  it,  or  as  much  of  it  as  can  be  held,  or  as  the  majority 


UNION.  193 

of  the  people  choose  to  have.  It  alone  can  draw  the  line  of 
separation,  and  defend  it  when  drawn.  It  alone  can  secure  a 
prosperous  and  united  North.  Give  this  power  to  the  several 
States,  each  to  decide  for  itself,  as  hopes  and  fears  and  parti- 
san intrigue  and  popular  passion  may  dictate,  and  the  fate  of 
continental  Europe  will  speedily  be  ours. 

Already  the  dangers  of  such  a  plan  have  been  foreshadowed 
by  the  course  of  the  Democratic  party  in  Pennsylvania,  so 
early  as  January,  1861,  in  anticipation  of  the  war  not  then 
begun.  Even  then  the  leaders  of  that  party  passed  a  resolu- 
tion, to  the  principles  of  which  they  have  since  adhered,  de- 
claring that  in  the  event  of  separation,  Pennsylvania  ought, 
and  legally  might  join  the  Southern  Confederacy.  Grant  such 
a  right,  strip  the  Government  of  power  to  preserve  the  Union 
after  the  separation  of  a  State,  and  what  a  chaos  of  ruin  would 
follow,  should  the  rebellion  accomplish  its  objects.  We  are 
wont  to  talk  of  the  weakness  of  the  South ;  but  all  the  nations 
of  the  world  combined  could  not  destroy  us  so  completely  as 
the  South  may,  should  these  monstrous  doctrines  be  carried 
out  to  their  practical  results.  This,  indeed,  may  well  be  a 
war  to  preserve  the  Union,  if  such  are  to  be  the  consequences 
of  disunion. 

Perhaps  the  Northern  people  may  choose,  and  may  have  the 
power  to  preserve  the  Union  against  the  wishes  of  the  South. 
They  may  determine  to  conquer  the  South,  and  to  hold  it  in 
subjection  by  military  force.  They  have  offered  to  the  Southern 
people  from  the  commencement  of  the  war,  peace,  good  will, 
and  their  former  equal  and  honorable  position  under  the  Go- 
vernment, on  the  sole  condition  of  laying  down  their  arms. 
Wherever  our  armies  went  they  have  proclaimed  that  they 
came  to  preserve,  not  to  destroy  ;  that  they  did  not  make  war 
on  the  people,  but  on  the  rebellion.  Private  property  and  non- 
combatants  have  been  respected,  even  slaves  escaping  to  our 
camps,  have  been  returned.  This  offer  has  been  spurned  with 
scorn,  these  words  and  acts  of  kindness  have  been  repulsed 
with  every  expression  of  malignant  hate.  Our  good  will  has 
been  met  with  curses  and  execrations,  even  by  the  women. 

The  Northern  people  are  not  very  excitable.    They  are  slow 

13 


194  THE    TRIAL     OF    THE    CONSTITUTION. 

to  anger,  but  they  can  be  moved  to  anger,  and  tlien  their  rage 
is  not  easily  appeased.  They  prefer  peace  to  war,  but  they 
love  war  and  its  excitements,  which  develop  those  qualities 
that  make  their  race  everyAvhere  conquerors ;  courage,  ad- 
venturous energy,  stubborn  tenacity  of  purpose,  love  of  supre- 
macy and  power,  "an  indomitable  rock-made  race  of  men," 
descendants  of  Hengist  and  Horsa,  of  the  Norsemen  and  Sea- 
Kings,  who  conquered  the  Celt  in  France,  England,  Scotland 
and  Ireland,  and  held  him  conquered,  overturned  the  Roman 
Empire,  and  spread  havoc  through  its  ancient  cities,  and  here, 
for  Avant  of  other  opposers,  have  conquered  the  primeval 
forests,  and  founded  an  empire  on  the  home  of  Indian  tribes. 
Perhaps  these  Norsemen  of  America  may  say,  "  This  Southern 
country  is  ours  by  right,  and  we  will  have  it,  in  its  length  and 
breadth,  with  its  coasts  and  cotton,  its  rivers  and  ports ;  it  is 
ours,  and  it  shall  be  ours,  if  we  must  make  it  a  desert.  The 
Southern  people  hate  us,  defy  us,  make  war  upon  us.  We 
accept  their  challenge,  and  will  treat  them  as  enemies.  They 
reject  the  Union,  will  not  live  Avith  us  in  the  Union.  Be  it 
so ;  we  Avill  reject  them  from  the  Union,  but  still  hold  their 
country.  They  call  us  abolitionists.  We  accept  the  title,  and 
will  abolish  slavery,  or  anything  else  that  stands  between  us 
and  our  purpose.  They  have  attempted  to  destroy  our  Go- 
vernment. We  Avill  make  them,  not  its  citizens,  but  its 
subjects." 

This  would  be  a  Gothic  way  of  settling  the  controversy,  and 
the  Gothic  nature  is  not  extinct,  however  softened  and  refined 
by  culture  and  civilization.  The  old  Norse  temper  survives 
and  shoAvs  itself  on  occasion.  What  would  the  Englisfi  people 
do  in  like  circumstances  ?  Would  they  give-  up  territory  to  a 
threat  ?  Would  they  palter  and  argue,  and  negotiate  Avith  a 
causeless  and  Avicked  rebellion,  or  oifer  concession  and  com- 
promise in  return  for  insults  and  bloAvs  ?  Would  they  suffer 
their  Empire  to  be  dismembered  for  the  sake  of  slavery,  or 
permit  an  enemy  to  exist  within  its  rightful  limits,  Avhere,  if 
they  could  not  have  a  friend  they  might  have  a  dependent  ? 
Would  they  give  up  Ireland  ?  They  conquered  it,  and  have 
held  it  conquered  through  centuries  of  Avar,  and  more  than 


UNION.  195 

once  Av ell-nigh  exterminated  its  inhabitants,  rather  than  give 
it  up.  Would  they  give  up  Scotland  ?  Through  long  cen- 
turies they  made  incessant  efforts  to  conquer  the  Scotch,  efforts 
which  ceased  only  when  their  object  was  accomplished  by  the 
Union.  Did  they  give  up  us?  Rather  than  do  that  they 
fought  us  for  seven  years,  across  three  thousand  miles  of 
ocean.  "Would  they  give  up  India?  It  was  only  the  other  day 
that  they  tied  seceding  Hindoos  before  the  mouths  of  cannon, 
and  blew  them  into  fragments.  The  Norse  blood  beats  yet  to 
its  old  tune  under  the  silken  vesture  of  the  nineteenth  century. 
This  stern  deed  was  done  by  gay  and  graceful  officers,  of  gentle 
birth  and  cultivated  manners,  the  "  curled  darlings"  of  London 
drawing-rooms.  When  the  news  of  it  reached  home,  civilized, 
humane,  lettered  and  Christian  England  muttered  hoarse 
applause. 

Whether  we  are  to  have  Union  or  disunion,  and  on  what 
terms,  whether  Ave  are  to  be  one  nation  or  many  nations,  no 
one  can  predict.  Who  can  foresee  the  results  of  such  a  war  ? 
Who  can  foresee  the  many  difficult  questions  that  may  grow 
out  of  it,  affecting  even  the  nature  and  form  of  the  Govern- 
ment ?  Who  can  foretell  what  direction  the  rushing  torrents 
of  opinion  and  passion  may  take  or  to  what  changes  they  may 
lead  ?  All  that  we  can  know  is  that  there  will  be  changes, 
that  we  have  entered  on  a  nevf  chapter  of  our  history.  We 
are  tossed  on  the  billows  of  a  raging  sea.  Must  we  strand 
upon  the  rocks  for  Avant  of  order  and  rule  ?  Never  before 
Avas  a  National  Government  so  necessary  as  noAV, — a  Govern- 
ment that  can  command,  can  coerce,  can  be  a  captain  in  the 
storm.  We  Avant  a  Government  with  ability  to  grasp  the 
situation  of  the  country,  and  Avith  undisputed  poAver  over  the 
Union  and,  if  need  be,  OA^er  the  Constitution.  Nothing  less 
than  this  can  save  us  from  anarchy  and  its  consequence,  a 
military  despotism.  If,  because  of  factious  opposition,  the 
arm  of  the  Government  is  made  Aveak  and  its  authority  re- 
sisted, then  all  parties  Avill  call  for  the  one  man  power,  and 
put  in  its  hand  a  sAvord ;  for  men  prefer  security  to  liberty, 
will  sacrifice  liberty  for  security,  and  self-preservation  is  the 
first  laAv  of  nature  and  of  nations.     Thus  have  republics  al- 


196  THE    TRIAL    OF    THE     CONSTITUTION. 

ways  been  destroyed.  Reckless  party-spirit  dividing  the 
people  has  made  impossible  a  government  representing  the 
people,  and  substituted  for  it  a  government  beyond  their  con- 
trol as  the  only  refuge  from  confusion.  "When  neither  party 
will  submit  to  the  rule  of  the  other,  all  government  must  cease, 
and  unless  some  power  arises  out  of  the  strife,  strong  enough 
to  control  both,  society  must  cease.  In  this  way  anarchy  has 
ever  been  the  blood-red  blossom  of  democracy  and  despotism 
its  mature  fruit. 

The  people  may  soon  be  called  on  to  decide  between  giving 
absolute  power  to  the  Government  or  to  a  military  chief.  But 
is  it  not  dangerous,  men  say,  to  trust  any  Congress  and  Presi- 
dent we  have  had,  or  are  likely  to  have,  with  such  power, — 
power  over  the  Union,  over  the  Constitution  ?  Yes,  verily,  it 
is  dangerous.  Yet  what  is  the  power  of  Congress  and  the 
President  ?  Is  it  not  the  power  of  the  people  by  whom  they 
are  chosen  ?  Can  we  find  anything  to  trust  that  would  not 
be  chosen  by  the  people?  If  we  cannot  trust  the  people, 
then,  once  again,  democracy  has  failed. 

It  is  not,  however,  a  question  of  what  is  desirable,  but  of 
what  is  and  must  be.  The  Government  has  the  power,  not 
only  by  the  Constitution,  but  by  the  eternal  laws  of  nature, 
which  cannot  be  disobeyed  with  impunity.  No  previous  crisis 
has  revealed  the  necessity  for  such  power  and  its  consequent 
existence.  To  deny  and  resist  it,  will  be  to  destroy  the  Go- 
vernment and  make  Avay  for  another  of  a  different  character, 
vested  with  this  essential  power.  This  would  be  revolution  ; 
and  should  it  happen,  it  will  not  be  the  first  instance  of  "the 
loss  of  a  rejected  truth,  for  the  Avant  of  which  whole  nations 
fare  the  worse." 


If  the  reasoning  in  this  and  the  preceding  chapter  be  cor- 
rect, it  establishes  the  folloAving  propositions : 

The  people  and  the  States  of  1862,  in  Congress  assembled, 
have  supreme  power  over  the  Constitution  made  by  the  Con- 
vention appointed  by  the  States  in  1787,  and  accepted  by  the 


UNION.  197 

people,  to  alter  it  as  necessity  or  expediency  may  require.  ]N"o 
legal  autliority  exists  or  can  exist  by  which  such  action  of  Con- 
gress can  be  declared  void  and  the  people  released  from  their 
obligation  to  obey  the  laws.  But  any  act  of  Congress  is  void- 
able by  the  people  and  the  States  assembled  in  another  Con- 
gress, and  it  is  the  duty  of  Congress  and  of  all  other  officers  of 
Government  to  maintain  the  Constitution  inviolate,  so  long  as  it 
can  be  so  maintained  consistently  with  the  safety  and  welfare 
of  the  nation,  and  to  make  no  change  in  any  part  of  it  not 
demanded  by  necessity  and  sanctioned  by  public  opinion. 

The  American  Colonies  before  the  War  of  Independence 
were  members  of  a  Union  which  was  both  a  confederacy  and 
a  nation,  viz.,  the  British  Empire,  but  were  not  represented 
in  its  central  power. 

They  afterwards,  under  the  Articles  of  Confederation,  be- 
came members  of  a  Union  which  was  merely  a  confederacy. 

By  the  Constitution  they  again,  as  States,  became  members 
of  a  Union  which  was  both  a  confederacy  and  a  nation,  and 
were  represented  in  its  central  power. 

As  the  nation  is  more  important  than  a  State,  State  j^ower 
must  be  subordinate  to  national  power.  As  a  nation  has  a 
right  to  preserve  itself  and  to  do  all  things  necessary  for  its 
progress,  well-being  and  perfection,  it  has  a  right  to  limit,  in- 
crease or  diminish  its  size  ;  but  no  State  has  a  right  to  destroy 
the  nation  of  which  it  is  a  member,  or  to  weaken  it  or  to  de- 
prive it  of  a  part  of  its  territory. 

The  people  and  the  States  of  1862,  in  Congress  assembled, 
have  imperial  and  sovereign  power  over  the  Union  as  it  ex- 
isted before  the  present  rebellion.  They  have  the  legal  right 
to  maintain  it  by  force  of  arms  if  they  can,  or  to  relinquish  a 
portion  of  it  if  they  cannot,  or  to  dissolve  it  with  or  against 
the  consent  of  any  part  of  it,  and  the  people  of  no  part  have 
any  legal  right  whatever  to  withdraw  from  the  authority  of 
the  whole.  It  is  the  duty  of  Congress  and  other  officers  of 
the  Government  to  preserve  the  integrity  of  the  Union  if  they 
can  and  it  be  desirable  that  they  should.  It  is  their  duty  to 
permit  any  one  or  more  of  the  States  to  separate  from  the 
Union,  if  their  people  desire  to  do  so  for  just  and  reasonable 


198  THE     TRIAL     OF    THE     CONSTITUTION. 

causes.  It  is  the  duty  also  of  the  Federal  Government  to 
expel  from  the  Union  any  one  or  more  of  the  States  which, 
from  the  nature  of  their  institutions,  political  or  social,  or  be- 
cause of  the  predominance  of  an  inferior  race,  or  of  their  de- 
graded moral  and  intellectual  condition,  or  by  reason  of  their 
inveterate  hostility,  misrule  and  insubordination,  become  un- 
able to  participate  in  the  mental  and  material  civilization  of 
the  others,  unable  to  appreciate  civil  liberty  and  unfit  to  ex- 
ercise political  power. 

In  these  cases,  as  in  the  former,  should  tlie  Government 
exercise  its  power  oppressively,  the  only  legal  remedy  is  the 
ballot-box,  which  can  choose  another  Congress  better  instruct- 
ed as  to  the  wishes  of  the  people,  and  armed  with  the  same 
authority  to  undo  what  the  former  had  done. 

There  can  be  no  other  legal  security  against  abuse  of  power 
except  that  afforded  by  the  internal  structure  of  the  Govern- 
ment and  the  influence  of  public  opinion.  The  States  are 
represented  by  the  Senate,  the  people  by  the  House  and  by 
the  President ;  the  concurrence  of  all  is  necessary  to  the  pas- 
sage of  a  law.  Each  could  therefore  •  interpose  such  obstruc- 
tions and  delays,  that  before  the  whole  Government  could 
unite  in  any  measures  at  once  unconstitutional  and  tyrannical, 
the  people  would  be  roused  and  would  resort  to  all  those  ever- 
ready  instruments  by  which  intelligent  opinion,  under  free  in- 
stitutions, makes  itself  heard  and  obeyed.  The  State  Go- 
vernments would  remonstrate  and  threaten,  the  press  would 
pour  forth  its  daily  torrent  of  argument  and  invective,  tlie 
maclunery  of  at  least  one  party  would  be  put  in  requisition, 
and  popular  assemblies,  in  town  and  country,  would  speak  in 
tones  that  could  not  be  misunderstood  and  could  not  be  dis- 
regarded, because  they  would  announce  beforehand  the  result 
of  the  next  election. 

These  aiford  a  better  security  than  the  weak  protest  of  a 
Court  which  does  not  represent  the  people,  and  the  only  pos- 
sible security.  Should  it  happen  that  all  branches  of  the  Go- 
vernment united  in  harmonious  action,  and  that  the  great  ma- 
jority of  the  people  sustained  tliem,  tliese  facts  Avould  be 
evidence  that  the  measure,  however  novel  it  might  be,  was 


UNION.  199 

wise  and  necessary,  and  such  as  ought  to  be  adopted  ;  and  that 
word  ought  commands  men  and  nations  and  constitutions.  In 
such  a  case  what  ouglit  a  Judiciary  to  do  ?  Set  itself  in  oppo- 
sition to  the  combined  power  of  the  people  and  of  the  Govern- 
ment ?  Woukl  not  its  decree,  with  whatever  strength  it 
possessed,  tend  to  the  destruction  of  the  Constitution  it  pro- 
fessed to  support,  to  the  destruction  of  the  nation  it  pretended 
to  save,  to  the  chaos  of  revohition  and  the  wikl  misrule  of 
anarchy  ? 

The  powers  of  Congress  must  therefore  be  unlimited,  if  they 
are  to  be  "adequate  to  the  exigencies  of  the  Union."  They 
must  be  unlimited  to  carry  us  through  the  consequences  of  this 
war,  because  these  can  neither  be  foreseen  nor  defined.  They 
must  be  unlimited  over  the  Union  and  the  Constitution,  be- 
cause the  war  may  make  it  necessary  to  alter  both.  They 
must  be  unlimited,  because  in  the  perils  by  which  we  are  sur- 
rounded and  the  greater  perils  that  await  us,  nothing  short  of 
the  whole  power  of  the  people,  exercised  without  opposition  or 
dispute,  can  save  us  from  ruin,  and  it  must  be  exercised  wisely 
too,  or  it  will  fail.  This-  power  is  nothing  more  than  the  latent 
and  reserved,  but  absolute  and  despotic  authority,  which  every 
Government  must  possess,  to  use  in  case  of  need.  If  it  be  not 
granted  by  the  Constitution,  it  must  be  employed  nevertheless, 
for  we  cannot  resort  to  the  process  of  the  Fifth  Article.  If 
the  Union  and  the  Government  cannot  be  saved  out  of  this 
terrible  shock  of  war  constitutionally,  a  Union  and  a  Govern- 
ment must  be  saved  unconstitutionally. 

We  the  people  of  1862  are  not  to  be  commanded  to  our  de- 
struction, by  even  the  best  and  wisest  of  the  people  of  1787, 
whose  bodies  are  now  resting  in  their  graves,  and  whose  spirits 
are  perhaps  mourning  over  the  destruction  of  their  hopes.  A 
Union,  a  Government  and  a  Constitution  that  suits  us  we  must 
have.  Before  us  yawns  the  gulf  of  separation  and  revolution, 
as  it  did  before  our  fathers  in  1787, — monstrous,  unfathoma- 
ble, chaotic, — its  darkness  lighted  only  by  lurid  fires,  reveal- 
ing inexhaustible  magazines  of  passion  and  the  distorted  fea- 
tures of  the  furies  and  of  perpetual  war.  What  shall  we  do  ? 
Amend  the  Constitution  according  to  the  Fifth  Article  ?  None 


200  THE     TRIAL     OF     THE     CONSTITUTIOX. 

but  a  madman  -would  propose  that  now.  Shall  we,  as  our 
fathers  did  in  1787,  call  a  convention  of  our  wise  men  to  make 
another  Constitution,  "adequate  to  the  exigencies  of  the 
Union?"  We  cannot  do  this  in  the  midst  of  war.  Such 
labors  and  deliberations  require  the  calmness  and  security  of 
peace,  and  our  ancestors  waited  the  return  of  peace  before  at- 
tempting them.  Even  then  it  was  a  task  of  infinite  difficulty, 
not  so  much  to  make  a  Constitution  as  to  persuade  the  people 
to  invest  a  Convention  with  authority  to  make  one,  and  then 
to  persuade  them  to  accept  it  when  made.  Yet  they  had 
Washington,  Hamilton,  Jay,  Madison  and  others  of  similar 
stamp,  to  whom  they  could  trust  the  work.  We  have  no  such 
men,  and  cannot  summon  these  sages  of  the  past  to  help  us. 
Neither  is  it  necessary  now,  as  it  was  then,  to  abolish  an  old 
and  to  make  a  new  Constitution.  The  statesmen  we  have 
mentioned,  if  they  could  not  render  their  performance  perfect, 
did  not  leave  it  so  imperfect  that  it  must  be  remodelled  or 
altered  in  its  general  plan  and  structure.  They  were  too  wise 
and  too  well  instructed  by  experience  and  by  liberal  studies  for 
that.  The  living  principles,  the  true  spirit  and  meaning  of 
the  Constitution  which  they  left  us,  if  it  be  executed  by  the 
light  of  those  principles,  are  sufficient  for  our  preservation, 
now  and  forever.  If  faults  it  has,  these  are  in  its  minor  and 
subordinate  parts,  and  its  spirit  and  intention  do  not  more 
authorize  than  command  us  to  alter  those  parts,  as  time  may 
show  them  to  be  defective,  or  new  circumstances  may  require 
changes. 

Since  then  we  cannot  now  make  these  changes  according  to 
the  Fifth  Article,  nor  call  a  Convention  in  the  midst  of  war 
to  decide  questions  relating  to  the  Union,  surely  nothing  re- 
mains to  be  done  but  to  arm  the  existing  Government  by  our 
support,  with  all  the  power  that  a  Convention  would  have, 
that  is  to  say,  with  the  whole  power  of  the  people,  because 
nothing  less  than  the  whole  can  be  adequate  to  the  crisis.  If 
the  reasoning  of  this  and  of  the  preceding  chapter  be  correct, 
Congress  has  now  and  must  have  this  power,  for  the  reserved 
powers  of  the  people,  if  they  cannot  be  exercised,  do  not  exist. 
But   their  fancied  and  asserted  existence  may  nevertheless 


UNION.  201 

aiFord  a  pretext  for  factious  opposition  to  tlie  Government, 
more  dangerous  during  the  war  than  the  arms  of  the  enemy, 
and  more  dangerous  after  tlie  Avar  than  treason  itself.  These 
imaginary  reserved  powers  of  the  States  and  the  people  gave 
color  and  support  to  the  monstrous  claims  and  pretensions 
which  caused  the  rebellion,  and  unless  they  are  disavowed  and 
rejected  by  the  good  sense  of  the  country,  will  forever  prevent 
our  again  becoming  a  nation,  for  there  can  be  no  such  thing 
in  nature  as  a  nation  without  a  National  Government. 


202  THE    TRIAL    OF    THE     CONSTITUTION. 


CHAPTER    III. 


EXECUTIVE  POWER. 


The  present  war  has  revealed  weakness  and  uncertainty  in 
a  part  of  our  system  where  few  expected  to  find  it.  The 
Executive  branch  of  the  Government  was  a  novelty,  created 
partly  out  of  the  past  and  partly  invented  to  meet  the  de- 
mands of  a  new  situation.  Under  the  strain  of  the  existing 
crisis,  it  has  become  doubtful  whether  this  invention  has  the 
power  to  provide  for  the  public  safety  and  at  the  same  time 
maintain  the  security  of  personal  liberty.  As  the  Convention 
was  obliged  to  make  a  Union  out  of  the  old  Confederacy  to 
suit  the  necessities  of  the  times,  so  also  were  they  obliged  to 
make  for  a  Government  -svhich  was  to  act  directly  upon  per- 
sons and  things,  an  Executive  which  must  not  be  a  king,  but 
must  have  power  and  functions  very  like  those  of  a  king. 
Royalty  was  out  of  the  question,  but  some  authority  to  exe- 
cute the  laws,  to  represent  the  country  in  its  foreign  relations, 
and  to  perform  other  royal  duties,  was  absolutely  necessary. 
How  to  invent  an  elective  king,  a  republican  king,  powerful 
enough,  but  not  too  powerful,  was  the  difficult  problem. 

All  these  attributes  existed  in  the  English  model,  therefore 
in  the  traditions  and  recollections  of  every  member  of  the 
Convention.  In  that  -wonderful  product  of  time,  the  English 
Executive,  the  person  to  hold  the  highest  social  and  political 
rank  in  the  nation,  is  chosen  by  laAV,  so  that  the  dangers  of  a 
popular  election  or  of  the  designs  of  aspiring  ambition  are 
avoided.  But  this  person,  hoAvever  important  his  functions,  is 
scarcely  a  monarch,  for  he  has  no  responsibility  and  but  little 
power.  "  The  king  can  do  no  wrong,  cannot  even  intend  a 
wronfii:,"  This  is  the  maxim  Avhich  lies  at  the  foundation  of 
the  modern  English  throne.     The  meaning  of  the  principle  is, 


EXECUTIVE     POWER,  203 

not  that  the  king  is  incapahle  of  an  immoral  act,  but  that,  as 
the  hiw  professes  to  offer  a  remedy  for  every  wrong,  and  as 
the  king  coukl  liardly  he  punislicd  without  causing  a  civil 
Avar,  he  is  exempted  from  the  penalties  of  the  law.  But  if 
the  king  can  do  no  wrong,  his  advisers  may,  and  without  in- 
curring a  like  risk,  may  be  made  responsible.  To  impose 
responsibility  without  bestowing  power,  would  be  unjust,  wovdd 
be  impossible.  Power  and  responsibility  have  thus  fallen  to 
the  ministers  of  the  Crown ;  and  who  are  those  ministers  ? 
Members  of  the  Legislature,  holding  office  only  so  long  as 
they  are  sustained  by  a  majority  of  the  Legislature  ;  in  other 
words,  by  the  enlightened  public  opinion  of  the  nation.  The 
English  Executive  therefore  is  monarchical  without  arbitrary 
power  and  republican  without  being  elective.  It  is  aniique ; 
a  genuine  outgrowth  of  English  character.  It  is  a  product  of 
the  whole  past  of  the  nation,  its  labors,  struggles  and  dangers, 
aspirations  and  achievements  through  the  centuries,  and  its 
elements  may  be  traced  up  through  the  history  of  the  people 
to  feudalism,  to  Saxon  Arthur  and  Alfred,  nay  to  their  Ger- 
man ancestors  described  by  Tacitus,  as  in  the  acorn  may  be 
found  a  miniature  picture  of  the  future  oak. 

The  irresponsibility  of  the  Crown  and  the  responsibility  of 
its  ministers  were  established  as  maxims  of  the  British  Con- 
stitution by  the  Revolution  of  1688.  The  principle,  asserted 
before,  was  confirmed  and  strengthened  by  that  revolution,  and 
the  exclusive  poAver  of  ministers  in  all  important  measures 
soon  followed  as  a  necessary  consequence.  In  the  early  ages 
of  the  Government,  the  functions  of  the  Executive  and  the 
Legislature  were  not  accurately  divided,  as  they  never  are 
among  a  rude  people.  The  monarchy  was  first  feudal,  and  a 
struggle  arose  between  the  Barons  and  the  King,  in  which  the 
former  obtained  Magna  Charta,  the  great  organic  laAV  of 
English  liberty.  As  commercial  wealth  increased,  the  House 
of  Commons  acquired  importance,  and  the  contest  for  power 
was  between  that  body  and  the  King.  In  the  Revolutions  of 
1645  and  1688,  the  House  of  Commons  gained  the  victory, 
its  supreme  authority  in  the  Government  Avas  established, 
and  Hume  says  that  "  the  share  of  poAver  allotted  to  it  is  so 


204  THE    TRIAL    OF    THE     CONSTITUTION. 

great  that  it  absolutely  commands  all  otlier  parts  of  the 
Government."  Such,  therefore,  was  the  condition  of  the 
English  Executive  at  the  time  our  Constitution  Avas  made. 
Its  essential  feature  was  subordination  to  the  Legislature,  for 
the  ministry  "was  and  is  the  real  Executive  power. 

The  Convention  that  made  our  Constitution  were  obliged  to 
invent  an  Executive  department,  a  machine,  so  to  speak,  by 
which  the  Executive  authority,  essential  to  every  Government, 
could  be  applied.  In  this  as  in  all  other  things,  the  English 
Constitution  was  necessarily  their  model.  They  could  have 
no  other,  for  the  customs  and  ways  of  thinking  of  England 
were  theirs  also.  Whatever  in  the  English  plan  of  Govern- 
ment was  unsuited  to  their  condition,  they  discarded  or 
altered,  but  they  adhered  to  it  and  its  principles  so  far  as 
they  could,  under  the  new  circumstances  in  which  they  were 
placed.  They  were  about  to  make  an  organic  law  for  the 
Government,  superior  to  it  and  controlling  it,  as  the  act  and 
will  of  the  people.  They  were  about  to  make  a  written  Con- 
stitution, and  they  could  have  no  other  model  than  the  un- 
written Constitution  of  England  or  the  custom  of  the  realm 
in  political  law.  They  adopted  it,  except  in  parts  which  they 
intentionally  altered,  just  as  they  necessarily  and  for  the 
same  reason  adopted  the  common  law.  Psychologically  it  was 
impossible  for  them  to  do  otherwise,  for  they  brought  these 
customs  with  them  to  this  country  in  their  minds,  memories, 
hearts  and  traditions.  The  analogy  between  our  law  and 
that  of  England  is  genetic  and  cannot  be  overlooked,  and  the 
true  rule  of  interpretation  is  to  consider  them  the  same,  unless 
expressly  or  impliedly  altered,  becavise  unsuited  to  our  circum- 
stances. It  is  simply  a  truth  of  mental  science  that  such 
must  have  been  the  intention  of  the  law-makers.  The  Con- 
stitution was  the  embodiment  of  tlicir  thought,  and  that  of  the 
people  for  whom  it  was  made  and  Avho  accepted  it.  Not  the 
civil  law  but  the  common  law,  not  French,  Austrian  or  Turk- 
ish ideas  of  government,  but  English  ideas  were  in  their 
minds,  because  English  blood  ran  in  their  veins. 

A  short  time,  little  more  than  seventy  years, — most  of  them 
years  of  peace  and  prosperity, — have  elapsed,  and  a  crisis  has 


EXECUTIVE     POAYER.  205 

arisen  wliicli  is  to  test  the  workmanship  of  the  Convention  in  the 
Executive  power  of  the  Government,  as  it  is  testing  the  Union 
which  they  intended  to  consolidate  and  make  perpetnal.  Two 
vital  questions  have  arisen,  involving  the  very  ends  and  pur- 
poses of  this  Government  and  all  Governments :  what  is  the 
power  of  the  Executive  to  defend  the  nation  from  the  danf^ers 
of  civil  or  foreign  war  ?  and  what  is  the  security  afforded  by 
law  for  the  personal  liberty  of  the  citizens  ?  It  seems  that 
both  these  questions  are  doubtful,  for  both  are  doubted.  The 
President  has  caused  many  persons  suspected  of  treasonable 
designs  or  practices  to  be  arrested  and  detained  in  confine- 
ment, suspending  the  privilege  of  the  writ  of  Habeas  Corpus 
by  his  sole  authority.  Congress  has  acquiesced  and  so  have 
the  people,  for  the  necessity  was  urgent  and  obvious,  and  the 
confidence  which  Mr.  Lincoln  has  inspired  is  so  great  and  so 
general,  that  few  are  willing  to  censure  acts  Avhich  all  know 
to  be  prompted  by  pure  motives  and  a  high  sense  of  duty. 

But  this  general  consent  is  not  law,  though  it  may  create  a 
precedent  which  hereafter  may  become  law.  The  legality  of 
the  President's  course  has  been  made  the  subject  of  much  dis- 
cussion, and  different  views  of  it  have  been  taken  by  men 
whose  opinions  are  entitled  to  respect.  The  Attorney-Gene- 
ral, Judge  Parsons,  Professor  of  Law  at  Cambridge,  Mr. 
Binney  and  others  have  made  elaborate  arguments,  all  dif- 
ferent, some  of  them  conflicting.  It  is  therefore  plain  that 
the  Executive  machine  constructed  by  the  Convention  does 
not  work  well,  that  it  puts  great  interests  and  essential  prin- 
ciples in  jeopardy,  that  it  is  not  clearly  understood  by  those 
who  have  to  manage  it.  It  is  a  portion  of  our  Constitution 
that  is  new,  and  therefore  has  to  be  tried  and  construed,  and 
out  of  that  trial  and  interpretation  must  grow  a  rule  of  con- 
duct for  the  future.  Seeing  that  things  so  momentous  as  na- 
fe  tional  existence  and  personal  liberty  are  involved,  the  subject 
demands  a  calm  and  dispassionate  consideration,  free  not  only 
from  party  bias,  but  from  the  exciting  influences  of  even  such 
a  war  as  now  disturbs  the  country. 


206  THE    TRIAL     OF    THE     CONSTITUTION. 

The  question  is,  which  department  of  the  Government  has 
the  authority  to  suspend  the  privilege  of  the  writ  of  Habeas 
Corpus  ?  The  Constitution  does  not  say.  We  must,  there- 
fore, be  guided  to  a  conclusion  by  some  rule  of.  interpretation. 
According  to  the  principles  above  stated,  we  should  inquire 
first,  what  is  the  law  of  England  ?  secondly,  what  alteration 
in  it  has  the  Constitution  expressly  or  impliedly  made  ?  and 
thirdly,  if  there  be  still  room  for  doubt,  what  ought  now  to  be 
established  by  precedent  as  the  law  for  this  country  in  the 
future  ? 

Freedom  is  the  birthright  of  Englishmen,  because  the  love 
of  it  is  an  essential,  inherent  characteristic  of  their  race  and 
of  theirs  only.  Out  of  this  attribute  of  the  Saxon  nature 
grew  the  liberty  of  the  English  Constitution.  Its  free  prin- 
ciples existed  before  the  Norman  conquest.  Magna  Charta, 
the  keystone  of  English  liberty,  was  merely  an  assertion  of 
ancient  but  violated  rights.  During  the  subsequent  struggle 
under  the  Norman  kings,  the  confirmation  of  the  Great  Char- 
ter was  the  trophy  of  victory  gained  by  the  people  over  royal 
power  and  the  price  of  every  concession  made  by  them  to  it. 
The  laws  of  the  Saxon  Edward  the  Confessor,  the  civil  rights 
of  the  people  before  Norman  rule,  lived  in  the  heart  of  the 
nation,  and  the  Great  Charter  did  not  create  or  bestow  them, 
but  declared  them.  The  Petition  of  Right  in  1(320,  the  Bill 
of  Ria-hts  in  1688,  were  notliins  more  than  solemn  and  formal 
confirmations  of  the  principles  of  Magna  Charta,  violated 
by  a  tyrannical  and  perfidious  king,  and  the  declaration  of 
rights,  which  was  the  foundation  of  the  Bill  enacted  by  Par- 
liament on  the  accession  of  William  and  Mary,  concludes  with 
these  words  :  "  And  they  (the  Lords  and  Commons)  do  claim, 
demand  and  insist  upon  all  and  singular  the  premises,  as  their 
undoubted  rights  and  liberties:"  and  the  act  of  Parliament 
recoirnizes  "  all  the  rights  and  liberties  confirmed  in  the  said 
declarations  to  be  the  true,  ancient  and  indubitable  rights  of 
the   people  of  this  Kingdom."      Thus  says  Hallam  :*    "  The 

*  3  Constitutional  History,  140.     1  Blackstone's  Couini.,  128. 


EXECUTIVE    POWEK.  207 

Commons  wisely  resolved  to  go  to  the  root  of  the  nation's 
grievances,  and  to  show  their  new  sovereign  that  he  was 
raised  to  the  throne  for  the  sake  of  those  liberties,  by  violat- 
ing which  his  predecessor  had  forfeited  it ;  .  .  .  and  thus  the 
declaration  of  rights  was  indissolubly  connected  with  the  re- 
volution settlement  as  its  motives  and  condition." 

The  Act  of  31  Charles  II,  called  the  Habeas  Corpus  Act, 
created  no  new  rights.  It  afforded  a  more  perfect  protection 
to  those  already  existing,  and  provided  a  prompt  and  effective 
remedy  for  their  violation.  It  did  not  even  create  the  writ  of 
Habeas  Corpus,  but  enlarged  its  effect.  Its  true  character  is 
described  clearly  and  concisely  by  the  sober  and  truth-telling 
historian  of  the  English  Constitution:  "The  essential  clauses 
of  Magna  Charta  are  those  which  protect  the  personal  liberty 
and  property  of  all  freemen  by  giving  security  from  arbitrary 
imprisonment  and  arbitrary  spoliation."  "No  freeman,"  says 
the  29th  chapter  of  Henry  Ill's  Charter,  which,  on  the  exist- 
ing law,  I  quote  in  preference  to  that  of  John,  the  variations 
being  not  very  material,  "  shall  be  taken  or  imprisoned,  or  be 
disseised  of  his  freehold  or  his  liberties  or  free  customs,  or  be 
outlawed  or  exiled,  or  any  otherwise  destroyed ;  nor  will  we 
pass  upon  him  nor  send  upon  him,  but  by  laAvful  judgment  of 
his  peers  or  by  the  law  of  the  land.  We  will  sell  to  no  man, 
we  will  not  deny  or  delay  to  any  man,  justice  or  right."  "  It 
is  obvious  that  these  words,  interpreted  by  any  honest  court 
of  law,  convey  an  ample  security  for  the  two  main  rights  of 
civil  society.  From  the  era,  therefore,  of  King  John's  Char- 
ter, it  must  have  been  a  clear  principle  of  our  Constitution  that 
no  man  can  be  detained  in  prison  without  trial.  Whether  the 
courts  of  justice  framed  the  Avrit  of  Habeas  Corpus  in  confor- 
mity to  the  spirit  of  this  clause,  or  found  it  already  in  their  re- 
gister, it  became  from  that  era  the  right  of  every  subject  to 
demand  it.  That  writ,  rendered  more  actively  remedial  by 
the  statute  of  Charles  II,  but  founded  upon  the  broad  basis  of 
Magna  Oharta,  is  the  principal  bulwark  of  English  liberty; 
and  if  ever  temforary  circumstances  or  the  doubtful  plea  of  po- 
litical necessity  shall  lead  men  to  look  on  its  denial  ivith  apathy^ 


208  THE    TRIAL     OF    THE     CONSTITUTIOX. 

the  most  distinguisldng  feature  of  our  Constitution  ivill  he 
effaced.'''^ 

Let  us  now  inquire  -what  -was  tlic  English  law  of  personal 
liberty  Avliitli  must  have  been  in  the  minds  and  memories  of 
the  men  who  made  our  Constitution.  English  history  was 
theirs  also.  They  inherited  Magna  Charta,  the  Petition  of 
Right,  the  Bill  of  Rights,  and  the  common  law,  and  lived 
under  them  as  colonists.  They  were  not  ignorant  of  the  he- 
roic struggles,  through  eight  centuries  of  growth  and  progress, 
by  which  these  bulwarks  of  freedom  had  been  built  up  by  their 
ancestors.  It  is  reasonable  to  suppose  that  they  would  adopt 
what  they  could  of  principles  thus  sanctified  by  the  Avisdom, 
valor  and  blood  of  their  own  race,  and  confirmed  also  by  expe- 
rience and  fortunate  results.  Personal  liberty  was  a  right, 
born  of  the  instinct  of  the  Saxon.  It  was  infringed  by  the 
rapacity  and  tyranny  of  Norman,  that  is  to  say  of  executive, 
power.  The  victory  achieved  b}"  the  people  was  to  subject 
this  power  to  the  restraint  of  the  Legislature,  and  the  writ  of 
Habeas  Corpus  was  contrived  as  a  fit  instrument  to  apply  that 
restraint.  The  law  of  England,  therefore,  is,  that  every  man 
imprisoned  by  any  authority,  shall  be  entitled  to  have  the 
cause  of  his  commitment  made  known  to  a  civil  magistrate, 
and  shall  be  bailed,  tried  or  discharged. 

It  is  obvious  that  this  general  law  must  of  necessity  be  sub- 
ject to  certain  exceptions.  It  is  intended  to  protect  civil 
rights,  not  to  open  them  to  attack,  or  to  disarm  the  Govern- 
ment in  the  defence  of  its  own  existence  against  rebellion  or 
treason,  or  of  the  nation  against  foreign  enemies.  Sedition  or 
war  may  make  it  essential  to  the  public  safety  that  the  per- 
sonal liberty  of  individuals  be  for  a  time  interfered  with,  in 
order  that  the  rights  of  all  may  be  preserved  in  the  future. 
The  English  law  intended  to  prevent  the  abuse  of  Executive 
power,  not  to  trammel  the  just  and  necessary  exercise  of  it. 
The  statute  of  31  Charles  II  is  an  Act  of  Parliament.  It  may 
therefore  be  repealed  or  suspended  by  Parliament,  for  the 
English  Constitution  recognizes  no  authority  superior  to  Par- 

*  2  Ilallum's  Middle  Ages,  41. 


EXECUTIVE    POWER.  209 

Hament,  which  embodies  and  represents  the  whole  power  of 
the  people.  The  theory  is  that  Parliament  is  omnipotent,  and 
that  theory  is  underlaid  by  the  great  body  of  ancient  inherited 
rights  and  liberties,  which  it  is  not  presumed  that  the  repre- 
sentatives of  the  nation  will  ever  disregard.  They  never  can, 
until  Englishmen  change  their  nature,  forget  their  traditions, 
and  abandon  their  customs.  No  formal  enactment  or  Avritten 
constitution  made  by  a  convention  can  be  stronger  than  these 
habits  and  customs,  or  more  clearly  defined,  and  therefore 
none  could  add  to  the  security  of  the  people.  It  may  indeed 
be  said  that  the  Constitution  of  England  is  whatever  Parlia- 
ment chooses  to  make  it ;  but  it  is  safe  so  long  as,  by  the  laws 
of  man's  nature.  Parliament  cannot  but  choose  to  preserve  it 
such  as  it  is. 

The  power  of  discretionary  arrest  had  been  abused  by  the 
Crown.  The  public  safety  was  made  the  pretext  to  cover  the 
gratification  of  the  selfish  passions  of  the  Monarch.  Such  is 
the  natural,  universal  tendency  of  arbitrary  and  irresponsible 
power  in  the  hands  of  an  individual.  The  genius  of  the  Eng- 
lish people  never  accepted  this  power  as  a  part  of  the  Royal 
prerogative.  They  protested  against  it  from  time  to  time, 
through  many  centuries,  as  a  violation  of  their  ancient  laws 
and  customs.  They  made  war  upon  it.  At  length  they  re- 
strained it  by  the  Habeas  Corpus  Act,  and  established,  both 
practically  and  theoretically,  the  law  of  the  land,  that  no  man 
shall  be  deprived  of  his  liberty  by  the  Executive  power  of  the 
Government  without  the  assent  and  concurrence  of  the  Legis- 
lative power  ;  thus  placing  alike  the  freedom  of  the  citizen  and 
the  safety  of  the  nation  where  they  ought  to  be  placed, — under 
the  protecting  care  of  the  tvliole  Government.  The  law  and 
the  reason  of  it  are  stated  with  elegance  and  clearness  by 
Blackstone. 

"  To  bereave  a  man  of  his  life,  or  by  violence  to  confiscate 
his  estate,  without  accusation  or  trial,  would  be  so  gross  and 
notorious  an  act  of  despotism  as  must  at  once  convey  the  alarm 
of  tyranny  through  the  whole  Kingdom  ;  but  confinement  of 
the  person  by  secretly  bringing  him  to  gaol,  where  his  suflFer- 

14 


210  THE    TRIAL    OF    THE    CONSTITUTION. 

ings  are  unknown  or  forgotten,  is  a  less  public,  a  less  shock- 
ing, and  therefore  a  more  dangerous  engine  of  arbitrary 
government.  And  yet  sometimes,  Avlien  the  State  is  in  real 
danger,  even  this  may  be  a  necessary  measure.  But  the  hap- 
piness of  our  Constitution  is,  that  it  is  not  left  to  the  Execu- 
tive power  to  determine  when  the  danger  to  the  State  is  so 
great  as  to  render  this  measure  expedient ;  for  it  is  Parliament 
only,  or  Legislative  power,  that,  whenever  it  sees  proper,  can 
authorize  the  Crown,  by  suspending  the  Habeas  Corpus  Act 
for  a  short  and  limited  time,  to  imprison  suspected  persons 
without  giving  any  reason  for  so  doing,  as  the  Senate  of  Rome 
was  wont  to  have  recourse  to  a  dictator, — a  magistrate  of  ab- 
solute authority,  when  they  judged  the  Republic  in  any  immi- 
nent danger.  ...  In  like  manner  this  experiment  ought  only 
to  be  tried  in  cases  of  extreme  emergency ;  and  in  these  the 
nation  parts  with  its  liberty  for  a  while  in  order  to  preserve  it 
forever." 

The  public  safety  alone  can,  therefore,  justify  the  denial  of 
the  benefits  of  the  writ  of  Habeas  Corpus  to  any  English  sub- 
ject, and  the  Legislature  only  can  suspend  the  statute  of  31 
Charles  II,  which  confers  the  privilege  of  the  writ.  That  is 
to  say,  no  man  can  be  imprisoned  in  England  except  for  legal 
cause  shown  or  on  conviction  after  trial,  unless  by  the  action 
of  all  branches  of  the  Government, — of  the  Legislature  which 
suspends  the  Habeas  Corpus  Act,  of  the  Executive  which  makes 
the  arrest,  and  of  the  Judiciary  also,  which  would  deny  the 
writ  after  an  act  of  Parliament  suspending  it.  The  public 
safety  is  the  legal  care  of  all,  and  the  motive  and  object  of  all 
in  violating  the  personal  liberty  of  the  citizen. 

But  it  might  liappen,  as  it  has  often  happened  in  England, 
that  tlic  public  safety  shall  be  menaced  by  imminent  danger 
when  Parliament  is  not  in  session.  In  such  a  case,  the  only 
branch  of  Government  in  a  condition  to  act  is  the  Executive, 
whose  peculiar  province,  indeed,  is  action,  and  to  which  the 
care  of  the  nation  is  primarily  intrusted ;  for  the  functions 
of  the  Judiciary  apply  to  transactions  that  are  past, — it  has 
no  spontaneous  action,  it  does  not  originate  or  plan.  For  the 
time  being,  therefore,  the  Executive  represents  the  whole  Go- 


EXECUTIVE     POWEE.  211 

vernment,  whose  duty  it  is  to  preserve  the  nation  from  danger; 
and  any  Constitution  that  did  not,  in  such  cases,  clothe  the 
Executive  with  corresponding  power,  would  be  very  defective. 
Such  a  Constitution  could  not  pass  through  any  period  of  peril 
of  the  kind  supposed,  without  being  disregarded  during  the 
crisis  and  altered  by  it,  for  the  law  of  self-preservation  is  or- 
ganic and  vital  .in  all  Governments.  The  English  Constitu- 
tion, tested  as  it  has  been  by  the  various  fortunes  of  stormy 
centuries,  is  not  without  provision  for  every  danger. 

The  Habeas  Corpus  Act  can  only  be  suspended  by  Parlia- 
ment ;  but  in  the  absence  of  Parliament,  or  even  when  Parlia- 
ment is  in  session,  and  the  case  demanded  instant  and  secret 
action,  the  Ministers  of  the  Crown,  when  the  public  safety  has, 
in  their  opinion,  required  it,  have  habitually  taken  the  respon- 
sibility of  suspending  the  benefits  or  privilege  of  the  writ. 
When  Parliament  meet,  they  immediately  ask  for  a  bill  of  in- 
demnity, and  also  for  a  suspension  of  the  act  itself,  should  the 
danger  continue.  The  consent  of  Parliament  is  therefore  re- 
quired for  any  invasion  of  personal  liberty,  either  before  or 
after  such  invasion,  has  always  been  asked  since  the  statute 
of  31  Charles  II,  and  has  always  been  granted. 

So  entirely  is  the  action  of  the  Executive  under  the  control 
of  the  Legislature,  that  the  habit  of  Ministers  to  make  arrests 
is  not  even  mentioned  by  elementary  writers  on  the  subject, 
but  the  principle  is  broadly  asserted,  as  in  the  quotation 
already  given  from  Blackstone,  that  such  arrests  can  be  made 
only  by  authority  of  Parliament.  In  an  edition  of  the  Com- 
mentaries by  Christian,  Archbold,  and  Chitty,  the  practice  of 
the  Government  is  thus  briefly  and  comprehensively  stated  in 
a  note  to  the  chapter  on  the  Councils  of  the  King :  "  The  Privy 
Council,  in  cases  of  sudden  emergency  arising  in  the  adminis- 
tration of  affairs  of  state,  for  which  the  law  has  made  no  pro- 
vision, assume  the  responsibility  of  applying  such  measures  as 
they  deem  meet.  But  they  do  so  under  a  heavy  responsibility ; 
for  if  Parliament,  at  its  next  meeting,  should  not  approve  their 
conduct  and  grant  them  an  indemnity  for  acting  without  the 
license  of  law,  they  become  liable  upon  a  charge  of  misde- 


■1V2  THE     TRIAL     OF     THE     CONSTITUTION. 

meanor   or    treason,   according   to   the  circumstances   of   the 
case."* 

The  judicial  reports  may  perhaps  furnish  examples  that 
illustrate  the  practice  of  the  Government,  but  it  is  unneces- 
sary to  search  for  them,  when  history  and  the  proceedings 
of  Parliament  supply  abundant  precedents  of  equal  authority. 
Macaulay,  speaking  generally  on  the  subject,  says :  "  The 
principle  that  the  King  of  England  was  bound  to  conduct  the 
administration  according  to  law,  and  that,  if  he  did  anything 
against  the  law,  his  advisers  and  agents  were  answerable,  was 
established  at  a  very  early  period,  as  the  severe  judgments 
pronounced  and  executed  on  many  royal  favorites  sufficiently 
prove.  It  is,  however,  certain  that  the  rights  of  individuals 
were  often  violated  by  the  Plantagenets,  and  that  the  injured 
parties  were  often  unable  to  obtain  redress.  According  to 
law,  no  Englishman  could  be  arrested  or  detained  in  confine- 
ment, merely  by  the  mandate  of  the  sovereign.  In  fact, 
persons  obnoxious  to  the  Government  were  frequently  im- 
prisoned without  any  other  authority  than  the  royal  order. 
.  .  .  But  it  would  be  a  a;;reat  error  to  infer  that  the  English 
monarchs  were,  either  in  theory  or  in  practice,  absolute. 
We  live  in  a  highl}^  civilized  society,  in  which  intelligence  is 
so  rapidly  diffused  by  the  press  and  the  post-office  that  any 
gross  act  of  oppression  committed  in  any  part  of  the  island  is, 
in  a  few  hours,  discussed  by  millions.  If  an  English  sovereign 
were  now  to  immure  a  subject  in  defiance  of  the  writ  of  Habeas 
Corpus,  the  whole  nation  would  be  instantly  electrified  by  the 
news.  In  tlic  middle  ages  the  state  of  society  was  widely 
different.  A  man  might  be  illegally  confined  during  many 
months  in  Carlisle  or  Norwich,  and  no  whisper  of  the  trans- 
action might  reach  London.  .  .  .  Nor  were  our  ancestors 
by  any  means  so  much  alive  as  we  are  to  the  importance  of 
maintaining  great  general  rules.  We  have  been  taught  by 
long  experience  that  we  cannot  without  danger,  suffer  any 
breach  of  the  Constitution  to  pass  unnoticed.  It  is  therefore 
held  that  a  Government"  (by  which  is  meant    a    ministry) 

*  1  Blackstone's  Coram.,  232. 


EXECUTIVE     POAVER.  213 

"  which  unnecessarily  exceeds  its  powers,  ought  to  be  visited 
with  severe  Parliamentary  censure,  and  that  a  Government 
which,  under  the  pressure  of  a  great  exigency  and  with  [)ure 
intentions,  has  exceeded  its  powers,  ought,  without  delay,  to 
apply  to  Parliament  for  an  act  of  indemnity. "* 

By  virtue  of  such  an  act,  the  measures  of  the  Crown  become 
the  measures  of  the  whole  Government,  that  is  to  say,  of  the 
Executive  and  the  Legislature. 

The  first  case  that  occurred  of  a  suspension  of  the  writ  of 
Habeas  Corpus  as  provided  by  the  statute  of  Charles  II,  was 
in  1689,  immediately  after  the  accession  of  William  III. 
The  Government  was  scarcely  established,  the  exiled  king  had 
secured  the  countenance  of  France,  and  had  a  powerful  party 
both  in  Scotland  and  in  England.  Ireland  was  in  rebellion, 
and  the  new  establishment  threatened  by  dangers  from  within 
and  without.  A  conspiracy  to  support  the  pretensions  of 
James  to  the  CroAvn  was  discovered,  and  the  leaders  were 
arrested  by  order  of  William. 

The  case  was  a  new  one  under  the  law,  and  he  applied  to 
Parliament  for  advice  in  the  following  message  : 

"  That  his  majesty  hath  had  credible  information  that 
there  are  several  persons  in  and  about  this  town  that  keep 
private  meetings  and  cabals  to  conspire  against  the  Govern- 
ment, and  for  the  assistance  of  the  late  King  James.  That 
his  majesty  has  caused  some  of  those  persons  to  be  appre- 
hended and  secured  upon  suspicion  of  high  treason,  and  that 
he  thinks  he  may  see  cause  to  do  so  by  others  in  a  little  time  ; 
but  that  his  majesty  is  between  two  great  difficulties  in  this 
case ;  for  that,  if  he  should  set  these  persons  at  liberty  that 
are  apprehended,  he  would  be  wanting  to  his  own  safety  and 
the  safety  of  his  government  and  people  ;  on  the  other  hand, 
if  he  should  detain  them,  he  is  unwilling  to  do  anything  but 
what  shall  be  fully  warranted  by  law,  which  he  has  so  often 
declared  he  will  preserve  ;  and  that,  therefore,  if  those  per- 
sons should  deliver  themselves  by  Habeas  Corpus,  there  would 
be  another   difficulty.     That  his  majesty  is  likewise  unwilling 

*  1  Macaulay's  England,  30. 


214  THE    TRIAL     OF    THE     CONSTITUTION. 

that  excessive  bail  should  be  taken  in  this  case  ;  his  majesty 
remembering  that  to  be  one  article  of  the  grievances  presented 
to  him.  That  ordinary  bail  would  not  be  sufficient,  for  men 
who  carry  on  such  designs,  in  hopes  of  succeeding,  will  not 
stick  at  forfeiting  a  small  sum  ;  and  that  this  falling  out  when 
Parliament  is  sitting,  his  majesty  therefore  thought  fit  to  ask 
the  advice  of  this  House  therein,  and  intends  to  advise  with 
the  Lords  also."* 

This  message  excited  prompt  and  earnest  attention,  and 
gave  rise  to  a  long  debate  in  Parliament,  interesting,  because 
it  displays  the  bold,  high  spirit,  the  good  sense,  the  love  of 
liberty  and  love  of  order  and  law  which  animated  the  counsels 
of  England  at  this  critical  period  of  her  history,  and  which 
laid  broad  and  deep  the  foundations  of  her  Constitution.  The 
King  made  no  demand  on  Parliament.  He  simply  asked 
advice  in  a  new  and  difficult  emergency.  He  Avas  met  in  the 
same  spirit  by  Parliament,  and  the  discussion  that  followed 
shows  an  anxious  desire  to  arrive  at  safe  and  prudent  con- 
clusions. 

A  member  proposed  to  introduce  "  a  short  bill,  for  two  or  three 
months,  to  enable  the  King  to  commit  such  persons  as  he  shall 
have  cause  to  suspect,  without  the  benefit  of  Habeas  Corpus." 
This  was  not  granted  without  much  hesitation,  for  the  Habeas 
Corpus  was  described  as  "the  general  security  of  all  sub- 
jects,"— not  to  be  trenched  upon  except  imder  the  stress  of 
urgent  necessity.  Plow  to  reconcile  a  just  regard  to  the  laAv 
and  to  personal  liberty  with  the  public  safety,  was  the  question 
then  in  England,  as  it  is  now  with  us.  As  one  member  said, 
"  It  is  of  absolute  necessity  that  those  persons  be  secured  for 
tampering  with  the  Government,  and  of  as  absolute  necessity 
that  the  law  be  secured  too."  After  much  sober  and  serious 
deliberation,  it  was  first  "  Resolved,  that  the  humble  thanks  of 
the  House  be  returned  to  his  majesty  for  his  most  gracious 
message  in  desiring  the  advice  of  this  House."  And  thou  it 
was  "  Ordered,  that  a  committee  be  appointed  for  drawing  up 
a  temporary  bill  for  empowering  his  majesty  to  apprehend  and 

*5  Cobbett's  PaHiaineiitary  Debates,  153. 


EXECUTIVE     POWER.  215 

detain  all  such  persons  as  he  shall  have  just  cause  to  suspect 
are  conspiring  against  the  Government."  An  amendment 
was  offered,  limiting  the  operation  of  the  bill  to  a  particidar 
time,  which  was  agreed  to ;  and  another,  "  that  it  be  never 
drawn  into  precedent  or  example  hereafter,"  ivliich  was  re- 
jected. 

It  has  remained  a  precedent  and  settled  the  law,  and  when- 
ever the  writ  has  since  been  suspended,  it  has  been  by  a  bill 
in  the  language  and  form  of  the  one  thus  enacted.  When 
the  time  limited  for  its  operation  had  elapsed,  the  danger  still 
existing,  application  was  made  for  its  renewal,  by  Mr.  Hamp- 
den, who  said  :  "  What  is  the  meaning  of  all  the  intelligence 
that  comes  out  of  the  country  of  ill-affections  to  the  Govern- 
ment? And  have  we  not  a  body  "here  who  are  mutinying 
against  the  Government  ?  ...  Dangerous  persons  will  be 
delivered  out  of  prison,  if  this  bill  prevent  it  not,  and  they 
may  act  to  the  subversion  of  the  Government.  ...  If  the 
people  conspire,  the  King  cannot  keep  them  in  prison,  since 
they  must  come  out  by  Habeas  Corpus,  if  you  prevent  it  not 
by  this  bill.  We  are  in.  ivar,  and  if  tve  7nake  only  use  of  that 
remedy  as  if  we  tvere  in  full  peace,  you  may  be  destroyed  loitli- 
out  remedy.''  Another  member  said:  "Let  the  danger  be 
ever  so  gi-eat,  I  would  not  dispense  with  the  Habeas  Corpus, 
hut  hy  Parliament.  If  dispensed  ivith  hy  the  Executive 
power,  it  is  fatal  ahoays  ;  hy  the  Legislative  power,  there  is 
no  danger.''* 

It  was  precisely  this  supremacy  of  the  Legislative  power 
which  was  established  by  the  revolution  which  placed  William 
III  on  the  throne,  and  by  the  above  precedent  was  the  law 
of  England  settled.  It  has  never  since  been  doubted  or 
doubtful.  It  is  needless  to  cite  other  examples.  They  are 
all  of  the  same  character.  The  Habeas  Corpus  has  been  fre- 
quently suspended  in  English  history,  whenever  the  Govern- 
ment has  been  threatened  by  conspiracy,  sedition  or  treason. 
It  has  been  suspended  by  Ministers  during  the  recess  of  Par- 
liament, or  if  necessary,  whilst  it  was  sitting  and  without  its 

*  5  Cobbett's  Parliamentary  Debates,  267. 


216  THE    TKIAL    OF    THE    CONSTITUTION. 

kno-\vledge,  and  also  by  its  previous  consent,  but  in  all  cases 
the  forms  of  procedure  have  been  the  same  as  those  established 
by  the  first  case ;  in  all,  the  consent  of  Parliament  has  been 
asked  and  given,  and  in  no  case  has  its  supreme  authority  over 
the  subject  been  doubted  or  ([uestioncd. 

What,  then,  is  the  whole  hnv  of  England  in  reference  to  the 
two  vital  points  of  personal  liberty  and  the  public  safety  ?  Is 
it  not  that  both  are  placed  under  the  care  of  the  whole  Go- 
vernment, each  branch  acting  m  its  appropriate  sphere  and 
manner  ;  that  the  Executive  is  subordinate  to  the  Legislature, 
and  cannot  act  without  its  consent,  expressly  given  before  or 
after  action  ;  that  the  Executive  represents  the  whole  Govern- 
ment in  the  absence  of  the  Legislature,  and  may,  to  protect 
the  public  safety,  arrest  and  detain  individuals  at  its  discre- 
tion, subject  to  the  subsequent  approval  of  Parliament  ?  If 
such  be  the  law,  it  may  be  briefly  and  comprehensively 
stated  in  these  words,  which  are  the  words  of  our  Constitu- 
tion:  "The  privilege  of  the  writ  of  Habeas  Corpus  shall  not 
be  suspended  unless  the  public  safety  may  require  it."  Im- 
plied power  is  thus  given  to  suspend  the  writ,  but  to  whom  is  it 
given  ?  To  the  whole  Government.  The  words  can  have  no 
other  meaning,  since  no  department  is  expressly  or  impliedly 
named.  To  suspend  the  Habeas  Corpus  Act  is  to  suspend  the 
privilege  of  the  writ,  but  this  can  only  be  done  by  the  Legis- 
lature, and  if  such  were  the  language  of  the  law,  tlie  power  to 
suspend  would  be  confined  to  the  Legislature.  To  deny  the 
benefit  of  the  writ  in  a  particular  case,  is  to  suspend  the  privi- 
lege of  the  writ,  and  this  is  an  Executive  act.  The  language 
used,  therefore,  describes  the  functions  of  each,  because  the 
suspension  of  the  statute  by  the  Legislature  can  have  no  other 
object  or  effect  than  the  suspension  of  the  privilege  of  the 
writ,  Avhich  effect  is  also  produced  by  the  action  of  the  Execu- 
tive in  making  the  arrest. 

If  the  definition  above  given  may  be  regarded  as  a  correct 
statement  of  the  law  of  England,  it  is  very  clear  that  those  who 
made  our  Constitution  intended  to  adopt  that  law  except  as 
they  expressly  altered  it.  They  simply  used  the  words  "  pri- 
vilege of  the  Avrit  of  Habeas  Corpus."     Those  words  could 


EXECUTIVE     POWER.  217 

have  but  one  signification  to  English  colonists.  Tlicy  mean 
the  rights  of  personal  liberty  inherited  by  the  English  people. 
Evidently,  by  using  those  words  simply  and  without  qualifica- 
tion, our  ancestors  meant  to  adopt  the  Avliole  English  law  as 
settled  by  centuries  of  English  history  and  the  most  interest- 
ing events  of  those  centuries,  with  the  exception  expressly 
named  in  the  Constitution.  That  exception  limits  the  autho- 
rity of  the  Government  to  suspend  the  privilege  of  the  writ 
to  the  two  cases  of  rebellion  and  invasion,  when  the  public 
safety  may  require  it.  Had  they  meant  any  other  alteration 
of  the  law,  they  would  have  said  so.  Had  they  meant  to  con- 
fine the  power  of  suspension  either  to  the  Legislature  or  to  the 
Executive,  they  would  have  said  so.  When  the  subject  was 
under  debate,  one  member  proposed  that  the  privilege  of  the 
writ  should  never  be  suspended  at  all,  under  any  circum- 
stances. Another,  that  the  benefit  of  the  writ  should  be  sus- 
pended only  by  the  Legislature.  Finally,  after  a  discussion 
which  seems  not  to  have  been  very  fully  reported,  the  lan- 
guage of  the  Constitution  was  agreed  upon,  and  if  the  words 
italicised  below  had  been  inserted,  the  intention  and  meaning 
of  the  Convention  would  have  been  only  more  fully  ex- 
pressed. "  The  privilege  of  the  writ  of  Habeas  Corpus,  as 
enjoyed  by  our  ancestors  and  settled  by  the  law  and  practice  of 
JEngland,  shall  not  be  suspended,  unless  when,  in  cases  of  re- 
bellion or  invasion,  the  public  safety  may  require  it." 


But  it  may  be  said  and  has  been  said,  that  the  American  is 
a  very  different  thing  from  the  English  Executive,  and  in- 
tended to  be  diff'erent  in  its  structure  and  action.  Rank,  title 
and  the  hereditary  element  were  discarded.  The  President 
derives  his  power  from  the  people  ;  the  English  Minister  is 
appointed  by  the  Crown.  The  President  holds  office  during  a 
specified  period ;  the  English  Minister  during  the  pleasure  of 
Parliament.  Thence  it  is  argued  that  the  President  is  inde- 
pendent of  Congress,  and  possesses  co-ordinate  authority,  re- 
sponsible for  its  exercise  only  to  the  people  by  Avhom  he  was 


218  THE    TRIAL    OF     THE    CONSTITUTION. 

elected.  It  is  his  duty  to  take  care  that  the  laws  are  faith- 
fully executed,  and  to  preserve,  protect  and  defend  the  Consti- 
tution. It  is  primarily  and  chiefly  his  duty  to  secure  the  public 
safety  in  cases  of  rebellion  or  invasion.  Why  may  he  not  act 
independently  of  Congress  in  the  performance  of  these  duties, 
and  is  not  his  authority  coextensive  with  theirs  ?  Should  it  be 
necessary  to  suspend  the  Writ  of  Habeas  Corpus,  in  cases  of 
rebellion  or  invasion,  why  should  he  wait  for  or  ask  at  all  the 
sanction  of  Congress  ?  Nay,  is  it  not  plain  that  he  alone  has 
the  power  ?  The  Constitution  implies  an  immediate  grant  of 
power  to  somebody  on  the  happening  of  certain  events,  and 
provides  for  no  intervening  step  or  form  between  their  occur- 
rence and  the  exercise  of  the  power.  Its  language  refers  to 
Executive,  not  to  Legislative  action.  It  does  not  say  the 
Habeas  Corpus  Act  or  the  Writ  itself  may  be  suspended, 
which  would  have  brought  it  exclusively  within  the  sphere  of 
Congress,  but  it  says  "  the  privilege  of  the  Writ,"  an  object 
which  the  Executive  power  is  sufficient  to  accomplish. 

Such  are  the  arguments  by  which  an  attempt  is  made  to 
show  that  our  ancestors  intended  to  give  to  their  new  Execu- 
tive, powers  Avhich  their  ancestors,  in  contests  which  resounded 
through  centuries  of  English  history,  succeeded  in  wresting 
from  their  kings ;  prerogatives  claimed  by  the  Plantagenets, 
Tudors  and  Stuarts,  but  always  denied  by  the  English  people, 
were  revived  by  the  framers  of  our  Constitution,  and  the 
reason  why  this  Avas  done,  according  to  one  eminent  authority, 
was  because  the  President  is  so  strong ;  and  according  to 
another,  because  lie  is  so  weak. 

Washington  and  his  companions,  not  ignorant  of  the  annals 
of  their  race,  had  probably  no  such  intentions.  Tlie  language 
they  employed,  I  have  endeavored  to  show,  was  consistent  with 
their  desire  to  adopt  the  law  of  England  in  reference  to  the 
Writ  of  Habeas  Corpus,  except  where  they  expressly  altered 
it,  and  whatever  changes  in  the  Executive  department  they 
meant  to  make,  or  were  obliged  to  make,  every  presumption  is 
against  their  intending  to  clothe  it  with  greater  power  than 
that  of  tlie  English  Executive,  more  especially  with  the  irre- 
sponsible   power  of   secret  and    discretionary    imprisonment. 


EXECUTIVE     POWER.  219 

Power  must  be  given  to  every  Government.  If  restricted 
beyond  a  certain  point  it  ceases  to  have  power.  A  Govern- 
ment is  like  an  individual.  It  reflects,  it  judges,  it  wills. 
Like  an  individual  also,  it  should  be  a  unit,  and  all  its  facul- 
ties should  act  harmoniously  together.  Power  is  the  attribute 
of  the  whole,  and  is  divided  into  power  thinking,  deliberating 
and  acting.  The  Legislature  thinks  and  originates,  the  Judi- 
ciary applies  to  cases  as  they  arise  the  laws  made  by  the 
Legislature,  the  Executive  executes  them  by  action,  by  deeds. 
As  thought  is  superior  to  action,  the  Legislature  is  the  highest 
power.  Therefore  in  every  free  Government,  the  Executive 
is  subordinate  to  the  Legislature.  In  every  Government  also, 
except  the  rudest,  the  three  departments  are  separated,  and 
yet  not  so  entirely  divided  that  each  does  not  in  some  degree 
participate  in  the  powers  of  the  others,  for  such  division  and 
combination  are  necessary  to  produce  united  action. 

In  our  Constitution,  the  distribution  of  power  is  for  the 
most  part  the  same  as  in  its  British  model.  Where  that  is 
departed  from,  the  change  is  expressly  stated,  and  restrains 
rather  than  enlarges  Executive  authority.  The  English  Execu- 
tive may  declare  war,  but  depends  on  the  Legislature  for  sup- 
plies to  carry  it  on.  With  us  Congress  alone  can  declare  war. 
The  English  Executive  may  make  treaties ;  ours  can  make 
them  only  Avith  the  concurrence  of  two-thirds  of  the  Senate. 
The  English  Executive  appoints  all  subordinate  officers  ;  the 
President  nominates  them  to  the  Senate  and  appoints  them  by 
and  with  its  advice  and  consent.  The  English  Executive  has 
an  absolute  veto  on  the  acts  of  the  Legislature ;  the  President 
a  conditional  one.  It  is  the  duty  of  the  English  Executive  to 
enforce  the  execution  of  the  laws,  to  suppress  insurrection, 
and  to  repel  invasion.  These  duties  appertain  to  the  Execu- 
tive officer  in  every  Government,  chiefly  and  at  the  beginning 
of  resistance  or  danger.  To  this  end  he  may  employ  military 
force,  but  in  England  that  force  is  under  the  control  of  Par- 
liaiiient.  In  order  that  it  may  remain  so,  by  a  usage  that 
has  become  law,  the  Mutiny  Bill,  by  which  the  army  is  organ- 
ized, is  limited  in  its  operation  to  one  year,  and  is  formally 
re-enacted  at  every  session.     The  execution  of  the  laws  and 


220  THE    TRIAL     OF    THE     CONSTITUTION. 

resistance  to  rebellion  or  invasion,  may  also  make  it  neces- 
sary to  arrest  and  imprison  rebels,  traitors  and  persons  sus- 
pected of  seditious  designs.  In  England,  the  Executive  can- 
not, as  we  have  shown  above,  exercise  this  power  without  the 
consent  of  the  Legislature,  given  before  or  after  the  ai-rest. 
So  that  in  these  essential  functions  of  Executive  authority, 
the  enforcement  of  the  laws  and  the  defence  of  the  country 
from  invasion,  an  English  Monarch  is  by  the  Constitution  of 
England,  controlled  by  the  Legislative  power,  and  must  be 
sustained  by  it. 

We  find  similar  provisions  in  our  Constitution,  in  relation 
to  the  use  of  military  force.  Congress,  it  is  declared,  shall 
have  power  to  raise  and  support  armies,  but  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term  than  two  years. 
To  provide  and  maintain  a  navy ;  to  make  rules  for  the  go- 
vernment of  the  land  and  naval  forces ;  to  provide  for  calling 
forth,  organizing,  arming  and  disciplining  the  militia ;  "  and 
the  President  shall  be  Commander-in-chief  of  the  arni}^  and 
navy,  and  of  the  militia  of  the  several  States,  when  called" 
(by  Congress,  as  aforesaid,)  "into  the  actual  service  of  the 
United  States."  We  here  find  the  English  law  and  practice 
codified  in  our  Constitution.  By  that  law  Executive  power, 
even  in  its  primary  and  essential  attributes,  is  subjected  to 
legislative  power.  By  our  Constitution  the  subordination  of 
Executive  authority  to  the  Legislature,  is  made  even  more 
complete  than  in  the  English  model  which  was  before  the  minds 
of  the  Convention.  It  is,  therefore,  reasonable  to  suppose, 
that  in  a  matter  so  vital  as  personal  liberty,  and  about  which 
the  American  people  were  so  sensitive,  the  founders  of 
our  Government  would  not  intentionally  depart  from  the  Eng- 
lish system,  which,  in  other  respects  they  copied  so  closely,  or 
that  if  they  meant  to  depart  from  it,  they  would  have  expressly 
said  so.  It  cannot  be  implied  that  they  intended  to  confer 
uj)on  tlie  Executive  Magistrate  a  power  so  dangerous,  so  liable 
to  abuse,  as  that  of  arbitrary  and  secret  imprisonment,  to  be 
exercised  without  the  knowledge  or  consent,  or  even  against 
the  will  and  protest  of  the  Legislature,  a  power  which  it  had 
cost  the  English  people  five  centuries  of  effort  to  take  from 


EXECUTIVE     P  GAVE  11.  221 

their  kings.  To  this  extent  is  authority  now  claimed  for  the 
President,  not  by  himself,  but  bv  eminent  jurists,  whose  names 
have  just  influence  on  public  opinion.  But  not  in  the  lan- 
guage of  the  Constitution,  in  reference  to  the  writ  of  Habeas 
Corpus,  nor  in  the  provisions  that  confer  and  limit  Executive 
powder,  nor  in  the  analogy  between  the  British  Constitution 
and  our  own,  is  such  a  claim  to  be  found.  Neither  is  it 
supported  by  judicial  or  other  authority,  subsequent  or 
contemporaneous. 


Mr.  Jefferson  and  Judge  Marshall,  who  played  a  distinguished 
part  in  public  affairs  during  the  Revolutionary  period,  Avere 
doubtless  well  informed  as  to  what  at  that  time  Avas  considered 
law,  on  a  subject  so  important  as  the  right  of  personal  liberty, 
and  it  is  fair  to  presume  that  what  they  thought,  was  also  the 
opinion  of  the  members  of  the  Convention. 

In  1807,  Aaron  Burr  formed  a  conspiracy  to  destroy  the 
Union.  It  never  reached  the  point  of  forcible  rebellion,  but 
it  was  feared  that  it  might  become  formidable  in  the  Southwest, 
and  at  one  period  the  danger  of  open  revolt  w^as  considered 
serious.  Some  of  Burr's  adherents  were  discovered  and  placed 
under  arrest  in  New  Orleans,  by  Colonel  Wilkinson.  His 
conduct  was  approved  by  Mr.  Jefferson,  who  was  then  Presi- 
dent, and  at  his  instance  a  bill  was  brought  into  Congress  to 
suspend  the  writ.  Congress  being  then  in  session.  The  bill 
passed  the  Senate  unanimousl}'',  but  was  rejected  by  the  House, 
only  because  news  arrived,  after  the  action  of  the  Senate,  that 
all  cause  for  alarm  had  passed  away.  Mr.  Jefferson  in  that 
case  followed  the  English  practice,  and  so  did  Congress.  It 
is  clearly  to  be  inferred  from  all  the  surrounding  circumstances, 
and  from  his  conduct,  that  had  Congress  not  been  in  session 
he  would,  had  the  occasion  required  it,  still  have  followed  the 
English  practice,  and  commanded  the  arrests  to  be  made,  for 
he  approved  of  Colonel  Wilkinson's  act. 

The  opinion  of  Chief  Justice  Marshall  on  the  subject  was 
given  in  the  case  of  Ex  parte  Bolman,  4th  Cranch.     That 


222  THE    TRIAL    OF    THE     CONSTITUTION. 

opinion  may  be  considered  by  lawyers  a  dictum,  because  the 
precise  point  to  which  it  relates  was  not  in  controversy,  and 
therefore  it  is  not,  technical]}^  speaking,  authority.  But  better 
or  higher  evidence  of  the  sentiments  of  the  statesmen  contem- 
poraneous with  the  formation  of  the  Constitution,  and  there- 
fore of  those  who  made  it,  than  the  opinion  of  Judge  Marshall, 
himself  one  of  the  founders  of  the  nation,  there  cannot  be.  If 
any  man  knew  how  much  English  law  our  fathers  intended  to 
adopt,  and  how  much  to  reject,  he  knew.  He  was  thoroughly 
imbued  with  the  best  and  wisest  spirit  of  the  times,  and  for- 
tunately his  long  life  enabled  him,  by  the  light  of  those  times, 
to  settle  many  difficult  and  important  questions  of  constitu- 
tional law.  In  reference  to  the  writ  of  Habeas  Corpus  he 
says  :  "  If  at  any  time  the  public  safety  should  require  the 
suspension  of  the  power  vested  by  this  act  (the  Judiciary  Act 
of  1789)  in  the  courts  of  the  United  States,  it  is  for  the  Legis- 
lature to  say  so.  That  question  depends  on  political  con- 
siderations, on  which  the  Legislature  are  to  decide.  Until 
the  legislative  will  be  expressed,  this  Court  can  only  see  its 
duty  and  obey  the  laws." 

We  may  infer  from  this,  that  in  the  opinion  of  the  Chief 
Justice  the  authority  to  suspend  the  privilege  of  the  writ, 
though  an  Executive  act,  does  not  belong  exclusively  to  the 
President,  because  the  Legislature  alone  can  suspend  the 
power  of  the  courts  to  issue  the  writ.  We  may  infer  also, 
that  the  charge  of  the  public  safety  is  not  confided  exclusively 
or  chiefly  to  the  Executive. 

What  the  Chief  Justice  would  have  said  had  the  question 
been  before  him,  as  it  recently  was  before  his  successor,  Judge 
Taney,  whether,  during  the  recess  of  the  Legislature,  in  the 
midst  of  a  rebellion  which  threatened  with  extreme  and  immi- 
nent danger  the  national  capital  and  the  existence  of  the 
Government,  he  would  not  have  thought  the  President  justi- 
fied in  "suspending  the  privilege  of  the  writ"  for  a  time  and 
on  his  own  responsibility,  subject  to  the  subsequent  approval 
of  Congress,  we  have  no  means  of  knowing.  Probably,  as  he 
had  been  an  English  subject,  the  uniform  English  practice  on 
such  occasions,  as  well  as  the  necessity  of  the  case,  would 


EXECUTIVE     POWER.  223 

have  influenced  his  judgment,  and  he  wouhl  have  decided  that 
such  legishitive  sanction  was  retrospective  in  its  operation, 
and  that  by  it  the  act  of  the  Executive  became  the  act  of  the 
whole  Government. 

Something,  also,  may  be  inferred  as  to  his  opinion  from  the 
conduct  of  his  friend  General  Washington,  and  of  Congress 
in  the  War  of  the  Revolution.  At  that  time  there  was  no 
national  Executive, — Congress,  which  consisted  of  delegates 
from  the  States,  acting  virtually  both* as  Legislature  and 
Executive,  It  was  a  period  of  war,  and  the  public  safety 
required  that  persons  suspected  of  treasonable  designs  and 
sympathies  should  be  arrested.  Many  were,  for  this  reason, 
imprisoned  by  the  Executive  power  of  the  States,  acting  at 
the  suggestion  of  Congress,  and  with  the  approbation  of 
Washington  ;  and  this  was  done  either  before  or  after  an  act 
of  the  State  Legislatures  suspending  the  writ  of  Habeas  Cor- 
pus, thus  following  the  law  and  custom  of  England.  A  case 
of  this  sort  occurred  in  this  city  in  1777.  Some  twenty  gen- 
tlemen, of  high  respectability,  were  arrested  by  order  of  the 
Supreme  Executive  Council  of  this  State,  at  the  instance  of 
Congress,  banished  to  a  town  in  Virginia,  and  there  detained. 
They  were  not  treated  as  criminals,  but  with  consideration 
and  kindness.  Those  who  chose  to  declare  their  allegiance 
to  the  Government  were  released,  and  all  were  permitted  to 
return  to  their  homes  when  it  was  thought  they  could  no 
longer  be  dangerous. 

The  following  extracts  from  the  Journal  of  Congress,  show 
the  opinion  of  its  members  on  the  law  at  that  time.  Many 
of  them  were  also  afterwards  members  of  the  Constitutional 
Convention. 

JOURNAL  OF  CONGRESS,  AUGUST  AND  SEPTEMBER,  1777. 

"Whereas,  the  States  of  Pennsylvania  and  Delaware  are 
threatened  with  immediate  invasion  from  a  powerful  army, 
who  have  already  landed  at  the  head  of  Chesapeake  Bay. 
And  whereas,  principles  of  policy  and  of  self-preservation 
require  that  all  persons  who  may  be  reasonably  suspected  of 


224  THE     TRIAL     OF    THE     CONSTITUTION. 

aidino-  or  abetting  the  cause  of  the  enemy  may  be  prevented 
from  pursuing  measures  injurious  to  the  public  weal : 

^'Resolved,  That  the  Executive  authority  of  the  States  of 
Pennsylvania  and  Delaware  be  requested  to  cause  all  persons 
within  their  respective  States,  notoriously  disaffected,  forth- 
with to  be  apprehended,  disarmed  and  secured,  till  such  time 
as  the  respective  States  think  they  can  be  released  without 
injury  to  the  common  cause. 

^'■Resolved,  That  it  be  recommended  to  the  Supreme  Exe- 
cutive Council  of  the  State  of  Pennsylvania,  to  cause  a  dili- 
gent search  to  be  made  in  the  houses  of  all  the  inhabitants  of 
the  City  of  Philadelphia,  who  have  not  manifested  their  attach- 
ment to  the  American  cause,  for  firearms,  swords  and  bayo- 
nets ;  that  the  owners  of  the  arms  be  paid  for  them  at  an 
appraised  value,  and  that  they  be  delivered  to  such  of  the 
militia  of  the  State  of  Pennsylvania  who  are  at  present  un- 
armed and  have  been  called  into  the  field. 

"  Resolved^  That  it  be  recommended  to  the  Executive 
powers  of  the  respective  States,  forthwith  to  apprehend  and 
secure  all  persons  who  have,  in  their  general  conduct  and  con- 
versation, evinced  a  disposition  inimical  to  the  cause  of  Ame- 
rica, and  that  the  persons  so  seized  be  confined  in  such  places 
and  treated  in  such  manner  as  shall  be  consistent  with  their 
respective  characters  and  the  security  of  their  persons. 

"  Resolved,  That  persons  of  like  character,  and  in  emergen- 
cies equal  to  the  present,  when  the  enemy  is  at  our  door,  have 
in  other  States  been  arrested  and  secured  upon  sustpicions 
arising  from  their  general  behavior  and  refusal  to  acknowledge 
their  allegiance  to  the  State  of  Avhich  they  were  the  proper 
subjects,  and  that  such  proceedings  may  be  abundantly  justi- 
fied by  the  conduct  of  the  freest  nations  and  the  authority  of 
the  moBt  judicious  civilians."  * 

These  arrests  were  made  with  the  knowledge  and  approba- 
tion of  Washington.  A  writ  of  Habeas  Corpus  was  issued  at 
the  instance  of  the  prisoners,  but  it  Avas  disregarded  by  the 
officer  in  charge  of  them,  and  soon  afterwards,  September 
IGth,   1777,  the   Legislature   passed  a  bill  indemnifying  the 


EXECUTIVE     POWER.  225 

Executive  Council  and  suspending  tlie  writ  of  Habeas  Corpus. 
This  bill,  as  it  fully  accords  with  the  English  law,  and  is  con- 
clusive proof  of  what  was  regarded  as  the  law  of  the  Colonies 
at  the  time  of  the  Revolution,  is  worth  quoting  in  full. 

"An  act  to  empower  the  Supreme  Executive  Council  of  this 
Commonwealth  to  provide  for  the  security  thereof  in  special 
cases,  where  no  provision  is  already  made  by  law. 

"  Whereas,  the  preservation  of  this  State,  and  of  all  its  mem- 
bers, and  of  the  army  acting  in  support  thereof  at  the  time  of 
a  hostile  invasion,  may  require  the  immediate  interposition  of 
the  Supreme  Executive  Council,  Avhen  the  judicial  powers  of 
the  Government  cannot,  in  the  ordinary  course  of  law,  suffi- 
ciently provide  for  its  security. 

"And  whereas,  for  this  important  purpose  the  Supreme  Exe- 
cutive Council  of  this  Commonwealth  have  lately,  at  the  recom- 
mendation of  Congress,  taken  up  several  persons  who  have  re- 
fused to  give  to  the  State  the  common  assurance  of  their  fidelity 
and  peaceable  behavior,  as  required  by  law,  and  it  is  appre- 
hended that  there  are  still  more  such  persons  among  us  who 
cannot,  at  this  juncture,  be  safely  trusted  with  their  freedom 
without  giving  proper  security  to  the  public. 

"Be  it  therefore  enacted,  and  it  is  hereby  enacted  by  the 
representatives  of  the  freemen  of  the  Commonwealth  of  Penn- 
sylvania, in  General  Assembly  met,  and  by  the  authority  of  the 
same,  That  it  may  and  shall  be  lawful  for  the  President  or  Vice- 
President,  and  the  members  of  the  Supreme  Executive  Council 
of  this  State,  or  any  two  of  them,  either  upon  the  recommenda- 
tion of  Congress  or  at  the  requisition  of  the  Commander-in- 
chief  of  the  army,  or  the  commander  of  a  division  or  corps  in 
the  same,  or  upon  the  information  of  any  credible  subject  of 
this  or  any  other  of  the  United  States,  to  arrest  any  person 
or  persons  within  this  Commonwealth  who  shall  be  suspected, 
from  any  of  his  or  her  acts,  writings,  speeches,  conversations, 
travels,  or  other  behavior,  to  be  disaffected  to  the  community 
of  this  or  all  or  any  of  the  United  States  of  America,  or  to  be 
an  harbinger  of  the  common  enemy  who  is  at  our  gates,  or  to 
give  mediate  or  immediate  intelligence  and  Avarning  to  their 
commanders  by  letters,  messengers  or  tokens,  or  by  discourag- 

15 


226  THE    TRIAL    OF    THE    CONSTITUTION, 

ing  people  from  talcinr)  up  arms  for  the  defence  of  the  country, 
or  spreading  false  news,  or  doing  any  other  thing  to  subvert 
the  good  order  and  regulations  Avhich  are  or  may  be  pursued 
for  the  safety  of  the  country,  and  to  seize  and  examine  such 
papers  in  their  possession  as  shall  in  any  wise  aflfect  the  public; 
and,  the  same  persons  being  arrested,  to  confine  and  remove 
them  to  any  distant  place,  where  it  Avill  be  out  of  their  power 
to  disturb  the  peace  and  safety  of  the  States  ;  or  to  tender  to 
them  the  oath  or  affirmation  of  allegiance  or  fidelity  to  the 
State,  as  directed  by  law,  and,  upon  taking  or  subscribing  the 
same,  to  enlarge  them,  or  to  demand  and  take  such  other  and 
further  security  and  assurance  from  them  as  the  said  President 
or  Vice-President  and  Council,  or  any  two  of  them,  in  their 
discretion  shall  think  proper,  or  as  the  particular  circumstances 
of  the  case  may  require. 

"And  be  it  further  enacted,  by  the  authority  aforesaid.  That 
the  President,  Vice-President,  and"  other  members  of  the  Su- 
preme Executive  Council  of  this  CommonAvealth,  and  all  per- 
sons acting  by  their  special  command  in  the  premises,  shall  be 
and  are  hereby  fully  indemnified  and  saved  harmless  from  all 
process,  suits  and  actions  that  shall  or  may  be  hereafter  sued, 
commenced,  prosecuted  or  brought  against  them  or  any  or 
either  of  them,  for  or  in  respect  of  any  of  their  orders  or  pro- 
ceedings heretofore  issued  and  had  upon  the  recommendation 
of  Congress,  or  which  they  shall  hereafter  issue  and  have  by 
virtue  of  this  act.  xA.nd  that  no  judge  or  officer  of  the  Supreme 
Court  or  an}'^  inferior  court  within  this  Commonwealth  shall 
issue  or  allow  of  any  writ  of  Habeas  Corpus,  or  other  remedial 
writ,  to  obstruct  the  proceedings  of  the  said  Executive  Council 
against  suspected  persons  in  this  time  of  imminent  danger  to 
the  State. 

"  Provided  always,  and  it  is  hereby  further  enacted  by  the 
authority  aforesaid,  That  this  act  shall  be  in  force  to  the  end 
of  the  first  sitting  of  the  next  General  Assembly  of  this  Com- 
monwealth, and  no  lono;er. 

"  Enacted  into  a  law  the  sixteenth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  seventy- 
seven." 


EXECUTIVE     POWER.  227 

These  arrests  were  not  made  by  the  Federal  Government, 
because  that  Government,  before  the  adoption  of  the  Consti- 
tution, coukl  not  act  upon  individuals,  but  exerted  its  power 
by  and  through  the  Governments  of  the  States.  But  Con- 
gress, in  recommending  the  measure,  dechired  that  "  such 
proceedings  may  be  abundantly  justified  by  the  conduct  of  the 
freest  nations  and  the  authority  of  the  most  judicious  civilians." 
It  is  reasonable  to  infer  that  the  law  and  practice  which  these 
men  and  their  associates  and  contemporaries  thus  commended, 
they  would  adopt  and  establish  when  they  undertook  to  make 
a  Constitution  for  a  new  nation  founded  by  their  counsels  and 
valor,  and  that  any  deviation  from  the  old  and  cherished  cus- 
tom would  be  expressly  provided  for,  and  not  left  in  doubt. 

Mr.  Hamilton  was  another  leading  spirit  of  the  Revolution 
who  left  the  impress  of  his  fine  intellect  upon  the  history  of 
the  period.  He  was  united  with  Washington  and  Marshall  by 
the  sympathy  of  great  souls  engaged  in  a  noble  cause,  and 
was,  with  them,  a  chief  co-founder  of  the  nation.  He  was  a 
member  of  the  Continental  Congress  during  the  war,  and  also 
of  the  Convention  that  framed  the  Constitution.  In  the  latter 
he  played  a  very  conspicuous  part.  No  opinion  of  his  on  the 
Habeas  Corpus  clause  in  the  Constitution  is  perhaps  on  record, 
but  we  may  infer  what  he  would  have  thought  of  the  authority 
of  the  President  to  suspend  the  privilege  of  the  writ,  during 
the  recess  of  Congress,  from  the  reason  that  he  gives  for  vest- 
ing in  the  President  the  pardoning  poAver,  even  for  the  crime 
of  treason.  "  The  principal  argument,"  he  says,  "for  repos- 
ing the  power  of  pardon,  in  this  case,  in  the  Chief  Magistrate, 
is  this :  in  seasons  of  insurrections  or  rebellion,  there  are  often 
critical  moments  when  a  well-timed  offer  of  pardon  to  the  in- 
surgents or  rebels  may  restore  the  tran(|uillity  of  the  Com- 
monwealth, and  which,  if  suffered  to  pass  unimproved,  it  may 
never  be  afterwards  possible  to  recall.  The  dilatory  process  of 
convening  the  Legislature  or  one  of  its  branches,  for  the  pur- 
pose of  obtaining  its  sanction,  would  frequently  be  the  occa- 
sion of  letting  slip  the  golden  opportunity.  The  loss  of  a  week, 
a  day,  an  hour,  may  sometimes  be  fatal." 

This  reason  applies  far  more  strongly  to  the  power  of  the 


228  THE    TRIAL    OT    THE     CONSTITUTION. 

Executive,  in  the  absence  of  the  Legislature,  to  arrest  con- 
spirators and  traitors.  It  is  a  measure  much  more  forcible 
and  effectual  than  the  offer  of  a  pardon.  Prompt  action  may 
often  break  up  a  plot  and  defeat  its  object,  when  on  the  eve 
of  execution.  The  delay  of  a  day  or  an  hour  might  de- 
cide the  fate  of  a  government,  by  giving  time  to  able  leaders 
to  concentrate  forces  and  make  an  attack,  which  might  convert 
a  rebellion  into  a  revolution.  English  history  is  full  of  such 
cases,  and  so  is  all  history.  With  such  precedents  in  his 
memory,  with  the  law  and  custom  of  England  and  of  the  Colo- 
nies, and  the  practice  of  Congress  during  the  war  of  the  Revo- 
lution before  his  mind,  it  is  impossible  to  believe  that  Mr. 
Hamilton  could  have  written  the  above  argument  and  not  have 
been  willing  to  apply  it  to  a  case  so  analogous  as  the  power  of 
the  President  to  suspend  the  writ  of  Habeas  Corpus  during  the 
recess  of  Congress.  As  that  power,  however,  may  be  abused 
and  lead  to  severity,  and  the  pardoning  power  only  to  mercy, 
as  the  first  infringes  and  the  other  respects  human  liberty,  the 
former  is  wisely  placed  ultimately  under  the  restraint  of  the 
Legislature,  whilst  the  latter  is  left  wholly  to  Executive 
discretion. 

These  instances  are  not  cited  as  legal  authority  in  a  techni- 
cal sense,  but  as  evidence  of  what  must  have  been  the  opinions 
of  Washington,  Marshall,  Hamilton  and  other  eminent  men, 
members  of  the  Continental  Congress  and  founders  of  the  Go- 
vernment. It  is  inconceivable  that  they  intended  to  invest 
the  President  with  a  prerogative,  which  their  ancestors  in  many 
bloody  and  heroic  struggles  wrested  from  feudal  kings.  It  is 
also  inconceivable  that  the  Convention  intended  to  disarm  the 
President  at  the  very  moment  when  he  alone  could  act  for  the 
defence  of  the  public  safety,  thus  inviting  attack  by  providing 
a  period  of  weakness.  But  it  is  conceivable,  considering  the 
excited  feelings  of  the  people  and  of  the  time  in  favor  of 
liberty,  that  Avhilst  the  Convention  adopted  the  English  law 
as  their  model,  they  should  alter  it,  as  they  expressly  did,  by 
limiting  at  once  the  power  of  the  President  and  of  Congress. 
Guided  by  these  examples,  by  history,  and  by  the  language  of 
the  Constitution,  could  not  the  law,  English  and  American,  be 


EXECUTIVE     POWER.  229 

thus  stated:  "The  privilege  of  the  writ  of  Habens  Corpus 
may  be  suspended  by  the  Executive  power,  by  and  with  the 
consent  of  the  Legislature,  given  before  or  after  such  suspen- 
sion, in  England  when  the  public  safety  may  require  it ;  in 
America,  when  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it." 

The  action  of  the  Executive  does  not  suspend  the  privilege 
of  the  writ,  except  in  the  particular  case  of  the  individual 
arrested.  The  benefit  of  the  writ  is  a  personal  privilege,  the 
right  of  every  citizen.  That  remains  until  the  writ  itself  be 
suspended  by  authority  of  the  Legislature.  It  remains  even 
to  the  person  arrested,  who  may  still  claim  that  the  writ  be 
issued,  and  the  cause  of  his  commitment  made  known  to  a  civil 
magistrate.  Prima  facie  his  arrest  is  a  wrong  for  which  in 
England  the  Ministers  are  personally  responsible,  and  for 
which  he  has  a  claim  for  damages.  Therefore  it  is  that  Par- 
liament passes  a  bill  indemnifying  them  for  Avhat,  until  thus 
sanctioned  by  Parliament,  is  an  illegal  invasion  of  the  liberty 
of  the  subject,  and  the  law  presumes  that  Parliament  will  sanc- 
tion the  acts  of  Ministers,  when  honestly  intended  for  the 
public  good,  and  will  also  refuse  to  relieve  them  from  the 
consequences  of  unjust,  unnecessary  or  oppressive  severity. 
The  English  practice  grew  out  of  overruling  necessity,  and 
whilst  it  respects  the  principle  that  an  act  of  Parliament  is 
inviolable,  except  by  Parliament,  and  maintains  the  principle 
of  the  responsibility  of  the  Ministers  of  the  Crown,  it  provides 
also  the  defence  of  the  Government  and  the  nation. 

It  may  be  said  that  our  Congress  with  its  enumerated  and 
restricted  powers  is  very  different  from  the  English  Parliament, 
which  is  theoretically  omnipotent,  and  therefore  that  the  for- 
mer cannot  divest  a  right  of  action  which  had  accrued  to  an  indi- 
vidual by  reason  of  a  violation  of  his  Yxhcvij ,  inima  facie  illegal. 
But  surely  the  Convention  had  authority  in  making  the  Con- 
stitution to  bestow  power  on  Congress  in  this  or  any  other 
particular,  and  the  question  is,  what  power  did  they  grant  ? 
The  purpose  of  the  present  argument  is  to  show  that  they 
adopted  the  whole  English  law  in  reference  to  the  writ  of 
Habeas  Corpus,  with  the  exception  expressed  in  the  Constitu- 


230  THE    TRIAL     OF    THE     CONSTITUTION. 

tion,  and  if  so,  the  Englisli  practice  •with  ren;ard  to  hills  of  in- 
demnity, in  which  practice  is  involved  the  great  vital  principle 
of  English  liberty,  the  subordination  of  Executive  to  legisla- 
tive authority. 


It  is  interesting  to  observe  how  the  wisdom  of  the  English 
law  has  been  vindicated  by  the  rebellion  and  civil  Avar  now 
raging  in  our  country.  That  law  grew  out  of  the  stress  and 
strain  of  such  trials,  and  is  therefore  fit  to  cope  with  them, 
and  we  see  it  now  adopted,  perhaps  unconsciously  and  unin- 
tentionally, by  the  Government,  notwithstanding  opposing 
opinions,  simply  because  it  suits  the  emergency.  All  the 
danger  from  violence,  privy  conspiracy  and  treason,  that  ever 
threatened  the  English  nation  in  the  worst  times  have  assailed 
ours  in  these.  The  life  of  Mr.  Lincoln  was  menaced  by  a  plot 
to  assassinate  him  as  he  was  going  to  Washington  to  assume 
the  oflfice  to  which  he  had  been  elected  by  the  people.  He 
escaped  only  by  travelling  secretly  to  the  National  Capital. 
He  there  found  himself  in  the  midst  of  enemies.  Civil  war 
had  commenced.  The  Government  had  been  carefully  dis- 
armed, and  its  enemies  strengthened  by  his  predecessor.  The 
army,  the  navy,  every  civil  department,  nay,  even  the  Executive 
mansion  itself,  were  filled  with  spies  and  traitors,  eager  and 
active  to  assist  the  rebellion,  many  of  them  every  day  openly 
enlisting  in  its  cause. 

On  one  side  of  the  Federal  City  was  Virginia,  disaffected,  ex- 
cited, and  ripe  for  revolt.  On  the  other,  l^nng  between  Wash- 
ington and  the  loyal  North,  was  Maryland,  waiting  only  the 
advance  of  the  rebels,  to  rise  in  arms  for  their  support ;  not 
waiting  indeed,  but  assaulting  the  troops  of  the  Government 
as  they  Avere  marching  to  its  defence,  and  destroying  bridges 
and  railroads  to  cut  off  its  communication  with  its  supplies  and 
its  friends.  The  Capitol  was  thus  surrounded  l)y  hostile  terri- 
tory, Avas  beleagured  and  threatened.  Congress  had  adjourned, 
with  a  lingering  hope  that  peace  might  yet  be  preserved,  and 
had  therefore  failed  to  make  preparation  for  war.     The  Presi- 


EXECUTIVE     POWER.  231 

dent  stood  alone,  the  representative  of  the  Government  and 
of  the  nation.  If  he  couhl  not  act,  no  one  couhl.  The  neces- 
sity^ was  ui-gent  for  some  power  to  resist  and  repel  the  rebels, 
for  had  their  plans  succeeded,  the  seat  of  Government  would 
have  fallen  into  their  hands,  and  the  President  himself  would 
have  been  driven  from  it  or  put  to  death. 

When  every  moment  was  thus  fraught  with  danger,  was  he 
to  hold  his  hand  and  wait  until  the  question  could  be  debated 
and  settled  by  lawyers,  whether  the  Executive  or  Legislative 
power,  under  the  Constitution,  could  suspend  the  Writ  of 
Habeas  Corpus  ?  Or  was  he,  Avhen  he  had  seized  and  secured 
a  conspirator,  to  permit  the  officer  who  had  him  in  custody  to 
leave  his  command,  and  obey  a  writ  issued  by  a  disaifected 
judge,  or  any  judge,  that  legal  questions  might  be  discussed 
in  the  midst  of  a  seditious  population,  or  anywhere  else,  when 
the  crisis  demanded  prompt  and  vigorous  action,  and  the  delay 
of  an  hour  might  be  fatal  ?  A  constitution  that  imposed  such 
a  fetter  upon  authority,  would  violate  the  supreme,  organic 
law  of  every  State,  and  a  crisis  like  the  one  described  would 
rend  it  to  tatters.  All  constitutions  and  all  laws  are  meant 
to  protect  the  public  safety,  not  to  endanger  it,  and  if  they 
fail,  they  cease  to  be  laws,  and  must  be  disregarded  when  an 
emergency  arises. 

Mr.  Lincoln  was  equal  to  the  occasion.  He  did — and  the 
resemblance  is  Avorth  noting — precisely  what  William  III  did 
under  similar,  but  far  less  difficult  and  perilous  circumstances, 
when  the  fate  of  the  nation  hung  on  the  decision  of  the  passing 
moment.  The  case  was  a  new"  one,  the  law  was  doubtful.  So 
it  was  in  the  first  years  of  King  William's  reign,  yet  he  did 
not  hesitate.  As  soon  as  Parliament  assembled,  he  told  them 
what  he  had  done,  explained  his  reasons  and  motives,  and 
asked  them  to  ratify  his  acts.  Mr.  Lincoln  did  the  same 
thing.  In  his  Message  to  Congress,  which  in  its  spirit  and 
purpose  is  similar  to  that  of  King  William's,  he  says :  "  The 
whole  of  the  laAvs  which  were  required  to  be  faithfully  exe- 
cuted, were  resisted  and  failing  of  execution  in  nearly  one- 
third  of  the  States.  Must  they  be  allowed  to  finally  fail  of 
execution,  even  had  it  been  perfectly  clear  that  by  the  use  of 


232  THE    TRIAL    OF    THE     CONSTITUTION. 

the  means  necessary  to  their  execution,  some  single  law  made 
in  such  extreme  regard  to  the  citizen's  liberty,  that  practically 
it  relieves  more  of  the  guilty  than  of  the  innocent,  should,  to 
a  very  limited  extent,  be  violated  ?  .  .  .  Are  all  the  laAvs 
but  one  to  go  unexecuted,  and  the  Government  itself  to  go  to 
pieces,  lest  that  one  be  violated  ?  Even  in  such  a  case,  would 
not  the  official  oath  be  broken  should  tlie  Government  be 
overthroAvn,  when  it  was  believed  that  disregarding  the  single 
law  would  tend  to  preserve  it  ?  But  it  was  not  believed  that 
this  question  was  presented.  It  was  not  believed  that  any  law 
was  violated.  The  provision  of  the  Constitution  that  the 
privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended, 
unless  in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it,  is  equivalent  to  a  provision  that  such  privilege  may 
be  suspended,  when  in  such  cases  the  public  safety  does  re- 
quire it.  It  Avas  decided  that  we  have  a  case  of  rebellion,  and 
that  the  public  safety  does  require  the  qualified  suspension  of 
the  privilege  of  the  writ,  which  was  authorized  to  be  made.  Now 
it  is  insisted  that  Congress  and  not  the  Executive  is  vested  with 
this  power.  But  the  Constitution  is  silent  as  to  Avhich  or  who  is 
to  exercise  the  power,  and  as  the  provision  is  plainly  made  for 
a  dangerous  emergency,  it  cannot  be  believed  that  the  framers 
of  the  instrument  intended  that  in  every  case  the  danger 
should  run  its  course,  until  Congress  could  be  called  together, 
the  very  assembling  of  which  might  be  prevented,  as  was  in- 
tended in  this  case  by  the  rebellion." 

The  native  sagacity  of  the  man,  stimulated  by  the  occasion, 
has  here  discovered  and  pointed  out  the  reason  of  the  English 
law,  and  he  concludes  by  saying  in  the  spirit  of  that  law,  that 
"  whether  there  shall  be  any  legislation  on  the  subject,  and  if 
any,  what,  is  submitted  entirely  to  the  better  judgment  of 
Congiess."  He  did  not  ask  in  terms  for  a  bill  of  indemnity, 
because  perhaps  he  was  not  thinking  of  himself  or  of  the  per- 
sonal consequences  of  performing  his  duty.  But  he  asks  the 
sanction  of  Congress  for  what  he  had  done,  as  in  a  previous 
paragraph,  in  relation  to  the  responsibility  he  took  in  calling 
out  the  militia  and  increasing  the  regular  army  to  resist  the 
rebellion,  he  says :   "  These  measures,  whether  strictly  legal 


EXECUTIVE     POWER.  233 

or  not,  were  ventured  upon  under  what  appeared  to  be  a  popu- 
lar demand  and  a  public  necessit}-,  trusting  then  as  now  that 
Congress  would  readily  ratify  them.  It  is  believed  that  no- 
thing has  been  done  beyond  the  constitutional  competency  of 
Congress. 

These  few  simple  sentences  contain  the  whole  law  of  Eng- 
land on  the  relation  between  the  Executive  and  Legislative 
departments  of  the  Government,  and  that  it  has  thus  been  un- 
consciously expressed  by  Mr.  Lincoln,  in  a  state  paper,  writ- 
ten under  the  pressure  of  a  great  danger  and  a  great  responsi- 
bility, is  a  signal  proof  at  once  of  the  wisdom  of  the  law  and 
of  the  deep  root  which  English  traditions  yet  hold  in  the 
American  mind.  Mr.  Lincoln  is  not  a  learned  man ;  he  is 
something  far  better,  he  is  a  wise  man.  It  is  not  probable 
that  he  had  the  English  practice  before  his  mind  when  he 
wrote  that  message,  or  he  would  in  express  terms  have  asked 
for  a  bill  of  indemnity.  But  he  is  not  ignorant  of  the  general 
■  principles  of  the  common  law,  of  the  leading  events  of  Eng- 
lish history,  and  his  reason  drew  from  those  principles  and 
events  their  legitimate  conclusion.  He  has  in  brief  words 
declared  that  the  Executive  is  subordinate  to  the  Leg-islative 
power  ;  that  the  Executive  is,  as  such,  charged  with  its  share  of 
the  duty  of  providing  for  the  public  safety,  and  in  the  absence  of 
the  Legislature,  with  the  whole  of  that  duty,  because  represent- 
ing for  the  time,  necessarily,  the  whole  Government ;  that  if, 
in  the  bona  fide  performance  of  such  duty,  the  President  tran- 
scends the  limits  of  executive,  and  exercises  legislative  autho- 
rity. Congress  ought  to  ratify  his  acts ;  and  lastly,  that  when 
they  are  thus  ratified,  they  become  in  law  legislative  acts, 
provided  "  that  nothing  has  been  done  beyond  the  constitu- 
tional competency  of  Congress."  His  language  implies  even 
more  than  this.  He  says  in  eifect  to  the  Legislature,  "  I  have 
exercised  powers  that  regularly  belong  to  you.  What  I  did 
was  done  only  because  you  were  not  here,  and  the  necessity 
for  prompt  action  was  urgent.  I  '  submit '  my  acts  to  your 
judgment.  If  you  approve  them,  make  them  yours."  What 
is  this  but  to  admit  the  right  and  the  duty  of  Congress  to 
guard  its  own  powers  and  to  resist  the  usurpations  of  a  Presi- 


234  THE    TRIAL     OF    THE    CONSTITUTION. 

dent,  by  disavowal,  by  denunciation,  by  impeachment,  unless 
his  conduct  was  justified  by  the  occasion,  and  there  was  no 
reason  to  suspect  him  of  criminal  intentions  ? 

It  is  to  be  remarked,  moreover,  that  Mr.  Lincoln  exhibited 
forbearance  and  moderation  in  the  exercise  of  his  authority, 
going  no  further  than  was  demanded  by  the  necessity  of  the 
case.  He  authorized,  as  he  says,  only  a  qualified  suspension 
of  the  privilege  of  the  writ.  The  writ  itself  was  never  sus- 
pended at  all.  The  benefits  of  the  writ  are  the  privilege  of 
every  citizen.  These  were  not  denied  to  the  people  or  to  sec- 
tions or  classes  of  them.  One  of  these  benefits,  and  perhaps 
the  most  important,  has  not  been  denied  even  to  individuals 
arrested  by  order  of  the  Government.  They  still  have  been 
entitled  to  the  writ,  to  which  a  return  has  always  been  made 
by  the  officers  in  whose  custody  they  were,  stating  the  autho- 
rity by  which  they  were  committed  and  the  charges  against 
them.  Publicity  has  thus  been  secured,  a  most  important 
protection  to  personal  liberty.  There  have  been  no  secret  ar- . 
rests,  no  lettres  de  cachet.  The  prisoner  and  his  friends  have 
known,  or  have  had  the  means  of  knowing,  the  ofi"ence  of  which 
he  was  accused,  and  the  place  of  his  confinement.  They  have 
thus  had  the  means  of  obtaining  his  release,  either  by  disprov- 
ing the  charges  made  against  him  or  by  giving  satisfactory 
assurances  of  future  good  behavior ;  and  the  Government  has 
shown  as  much  liberality  in  discharging  prisoners,  as  caution 
in  committing  them.  Wliilst  the  courts  can  issue  the  Avrit  and 
the  Government  continues  to  obey  it,  so  far  as  to  return  the 
cause  of  the  arrest  and  by  whose  authority  it  was  made,  the 
privilege  of  the  writ  is  not  fully,  but  partially  suspended,  and 
the  power  of  discretionary  imprisonment  by  being  stripped  of 
secrecy,  is  disarmed  of  its  most  dangerous  attribute. 

It  therefore  appears  that,  whether  as  expounded  by  Mr. 
Binney,  the  President  has  the  sole  and  exclusive  power  to 
suspend  the  privilege  of  the  Avrit  in  cases  of  rebellion  or  in- 
vasion ;  or  Avhether  he  may  do  so  without  the  sanction  of  Con- 
gress, because  of  his  independent  and  co-ordinate  authority, 
as  declared  by  the  Attorney-General  ;  or  wlietlier  the  exis- 
tence of  civil  war  puts  tlie  country  under  martial  law,  and 


EXECUTIVE     POWER.  235 

therefore,  as  some  contend,  clothes  the  President  with  mili- 
tary power  over  the  civil  courts  and  civil  rights  ;  or  whether, 
as  above  argued,  the  English  law  of  Habeas  Corpus  is  also 
ours,  and  as  Mr.  Lincoln  seems  to  think,  for  his  action  and 
his  language  accord  with  that  opinion,  he  at  least  has  done 
his  duty.  He  has  been  guilty  of  no  usurpation  or  stretch  of 
poAver.  He  has  shown  neither  fear,  favor  nor  affection,  per- 
sonal feeling  or  partisan  passion,  but  on  the  contrary,  has  ad- 
ministered his  great  office  so  impersonally,  as  the  representa- 
tive of  Executive  power,  and  with  so  much  fairness,  candor 
and  modesty,  that  even  the  reckless  rancor  of  party  spirit  has 
not  ventured  to  impugn  his  motives. 

Whilst,  however,  the  course  of  the  President  has  been  clear 
of  doubt  and  beyond  reproach,  the  conduct  of  Congress  cannot 
be  easily  explained  or  justified.  Why  did  they  not  at  once 
respond  to  Mr.  Lincoln's  appeal  ?  The  law  was  unsettled. 
He  himself  said  so ;  and  the  variety  of  opinions  on  the  subject 
proved  it  to  be  so.  Why  did,  why  does  Congress  permit  the 
golden  moments  to  pass,  when,  if  ever,  the  meaning  of  the 
Constitution  on  this  most  vital  point  might  be  established  for 
all  the  future  ?  Mr.  Lincoln  took  on  himself  a  heavy  responsi- 
bility in  their  absence.  He  told  them  so,  and  asked  for  their 
support.  They  did  support  him  in  the  matter  of  military 
force  to  quell  the  rebellion  ;  they  gave  him  more  men  and  more 
money  than  he  asked.  Why  have  they  been  silent  in  relation 
to  the  power  of  discretionary  imprisonment  of  suspected  and 
dangerous  persons  which  he  employed  for  the  same  pi^^'pose, 
and  which  involved  constitutional  principles  more  important 
even  than  the  calling  out  of  troops  w^ithout  the  previous  sanc- 
tion of  the  Legislature  ?  Was  he  guilty  of  usurping  authority  ? 
Congress  is  bound  to  say  so.  Was  he  thus  guilty  to  serve  the 
purpose  of  criminal  ambition  ?  It  is  the  duty  of  Congress 
to  denounce  or  impeach  him.  Did  he  honestly  mistake  the 
law  and  thus  set  up  a  dangerous  precedent  ?  The  silence  of 
Congress  Avill  establish  that  precedent.  Was  he  in  truth 
right  in  law  as  in  deed,  and  justified  by  the  Constitution  in  his 
fearless  and  honorable  discharge  of  high  and  difficult  duties  ? 
Then,  both  he  and  the  law  are  entitled  to  the  support  of  Con- 


236  THE    TRIAL    OF     THE    CONSTITUTION. 

gress,  more  especially  as  he  asked  for  it,  and  it  is  unjust  to 
cast  upon  liim  the  responsibility  of  measures,  which,  as  they 
were  in  their  nature  partly  legislative,  the  Legislature  ought 
to  share. 

The  Republican  party,  who  desire  to  crush  the  rebellion  and 
to  restoiH?  over  the  whole  country  tlie  authority  of  the  Union 
and  the  laws,  are  supposed  to  favor  the  opinion  that  the 
President  has  exclusive  poAver  to  suspend  the  writ,  either 
under  the  Constitution  or  by  reason  of  the  abnormal  rule  of 
martial  law.  Why  then  not  say  so  and  thus  support  their 
chief  who  asks  support  ?  They  cannot  say  the  law  is  settled, 
for  this  construction  of  it  is  rejected  impliedly  by  the  Presi- 
dent himself  and  expressly  by  the  Chief  Justice  of  the  United 
States.  Neither  can  they  deny  that  it  is  of  great  importance 
both  to  the  country  and  to  the  President  that  his  powers  be 
clearly  defined.  The  Democratic  or  opposition  party  is  sup- 
posed to  sympathize  to  a  greater  or  less  extent  with  the 
South  and  the  rebellion,  to  advocate  the  doctrine  of  State 
Eights,  and  to  oppose  the  motives  and  objects  of  the  war. 
Their  opinion  is  understood  to  be,  that  the  privilege  of  the 
writ  of  Habeas  Corpus  can  be  suspended  only  by  the  Legisla- 
ture, although  the  very  life  of  the  Government  may  be 
menaced  during  the  recess  of  Congress  and  however  immi- 
nent the  danger  may  be.  Why  then  does  that  party  permit  a 
principle,  in  their  judgment  so  dangerous  to  liberty,  to  be 
silently  by  j^recedent  introduced  into  the  Constitution  ?  It  is 
true  they  are  a  minority,  but  surely  for  the  sake  of  the  future 
they  might  speak  out  and  bring  in  a  bill  declaratory  of  the 
law  as  they  understand  it,  and  thus  place  on  the  record  their 
opinion  on  a  question  that  so  deeply  involves  the  interest  of 
the  future. 

So  far,  however,  the  only  thing  to  be  inferred  from  the 
conduct  of  Congress  is,  that  INIr.  Lincoln  has  been  justified. 
Silence  implies  more  than  consent,  it  implies  ap])rov;il  in 
cases  Avhere,  unless  there  be  approval,  remonstrance  or  censure 
would  be  a  duty.  And  no  doubt  the  silent  acquiescence  of 
Congress  and  of  the  people  in  measures  affecting  a  thing  so 
vital  as  personal  liberty,  so  cherished,  so  dear  to  the  popular 


EXECUTIVE     POWER.  237 

heart,  is  to  be  ascribed  to  the  general  conviction  that  thev 
were  necessary,  and  to  the  impression  made  bj  the  character 
of  Mr.  Lincoln,  The  majority  of  Congress  and  the  masses 
of  the  people  are  enthusiastic  in  their  desire  that  tlie  war  may 
lead  to  speedy  victory  and  its  objects  be  accomplished.  They 
see  that  the  power  to  arrest  the  seditious,  open  or  covert,  not 
as  a  punishment  for  crime  but  as  a  precaution  against  danger, 
is  a  means  as  necessary  to  success  as  an  army.  They  are 
convinced  that  Mr.  Lincoln  may  be  safely  trusted  with  that 
power.  Therefore,  they  behold  with  calm  and  grave  satisfac- 
tion, men  suddenly  seized  almost  every  day,  sometimes  at 
their  firesides,  and  hurried  off,  without  inquest,  indictment  or 
trial,  to  a  distant  prison, — a  spectacle  which,  but  for  the 
reasons  mentioned,  would  have  roused  the  country  into  angry 
billows  of  passion,  as  the  wind  rouses  the  rage  of  the  Atlantic. 
The  people  know  the  necessities  of  the  hour,  and  appreciate 
the  man  whose  hand  is  on  the  helm.  They  trust  him.  By  a 
few  plain  and  simple  sentences  and  unostentatious  deeds, — by 
golden  silence  and  by  silvern  speech, — by  masterly  action  and 
by  masterly  inaction,  this  sage  and  hero  from  the  backwoods 
has,  in  one  short  year,  commanded  the  entire  confidence  of  a 
great  nation,  of  a  people  the  most  intellectual  and  forcible  on 
earth.  Before  the  grandeur  of  that  sentiment  the  base  spirit 
of  party  cowers  in  silence,  and  the  venomed  tongues  of  the 
demagogues  are  obliged  to  hiss  in  whispers.  In  all  debates 
and  discussions,  legislative  or  social,  it  has  become  the  custom 
to  mention  the  name  of  Mr.  Lincoln  with  respect.  Clothed  in 
the  raiment  of  truth  and  justice,  he  walks  unscathed  through 
the  fiery  furnace  of  civil  war,  and  enters  without  fear  the 
murky  dens  of  party,  where  the  bowlings  and  gnashings  of 
envy,  hatred  and  revenge  are  awed  into  silence  by  his  pre- 
sence. It  is  a  signal  instance  of  the  magnetic  power  of  cha- 
racter, which  conquers,  like  beauty,  merely  by  being  seen. 
By  no  popular  arts,  by  no  dazzling  glare  of  military  or  other 
renown,  by  no  previous  services  to  the  country,  by  no  shining 
or  captivating  graces  or  accomplishments,  but  by  the  quiet 
and  unostentatious  display  of  a  national  and  catholic  spirit, 
of  a  good  heart,  of  perfect  integrity  and  purity  of  motive,  of 


238  THE    TRIAL    OF    THE    CONSTITUTION. 

valor  to  meet  danger  and  of  ability  to  cope  Avith  difficultT,  has 
this  man  of  plain  manners,  who  in  his  youth  "worked  as  a  farm 
laborer,  seated  himself  Avithout  an  effort  on  a  throne  nobler  than 
that  of  King  or  Kaiser, — the  respect  and  faith  of  his  coun- 
trymen. He  took  the  place  with  natural  ease  because  it  be- 
longed to  him,  as  an  eagle  calmly  perches  on  the  topmost 
bough  of  an  oak  or  the  loftiest  crag  of  a  mountain.  Indeed, 
if  we  look  into  the  matter  accurately,  he  has  always  occupied 
a  similar  place,  and  by  precisely  the  same  title,  for  his  neigh- 
bors called  him  "Honest  Abraham  Lincoln,"  and  the  only 
difference  is,  that  now  he  is  known  to  a  nation,  before  to  a 
village.  It  is  a  feat  that  has  not  often  been  performed  in  the 
world,  and  in  our  history  only  once  before,  and  then  by  Wash- 
ington. It  would  be  a  good  thing  if,  from  the  example  of 
both,  all  potentates  and  aspirants  to  power,  whether  Princes 
or  Presidents,  could  learn  that, — 

"  Corruption  wins  not  more  than  honesty." 


But  the  eagerness  of  Congress  and  of  the  people  for  the 
prosecution  of  the  war,  or  their  confidence  in  the  talents  and 
virtues  of  the  President,  will  not  settle  the  law  of  Habeas 
Corpus. 

Our  Constitution  has  been  working  now  for  seventv-two 
years,  and  its  construction  is  yet  doubtful  on  two  points  of 
prime  importance, — the  defence  of  the  public  safety  and  the 
security  of  personal  freedom.  No  man  can  tell  what  the  law 
is  or  will  be,  from  anything  that  has  been  said  or  done  by  Con- 
gress or  the  President,  though  some  guess  may  be  made,  from 
the  decision  of  Chief  Justice  Taney  in  Merriman's  case,  as  to 
what  the  courts  will  say,  should  the  question  come  before  them. 
As  it  is  an  open  question,  we  may  treat  it  in  the  spirit,  not  of 
lawyers,  but  of  lawgivers,  and  consider,  not  what  the  Consti- 
tution is,  but  what  it  ought  to  be.  This,  indeed,  is  the  higher 
and  nobler  topic  of  the  two,  and  is  presented  from  time  to  time 
both  by  the  advancement  of  a  nation  and  by  its  decline.  Laws 
and  customs  become  obsolete,  because  unsuited  to  new  condi- 


EXECUTIVE     POWER.  239 

tions  of  society,  introduced  either  by  its  decay  or  by  growing 
knowledge  and  the  needs  of  imj^roving  civilization. 

"All  the  years  invent; — 
Each  month  is  various  to  present 
The  world  with  some  development." 


The  conservatism  that  would  bind  the  present  in  the  fetters 
of  the  past,  is  as  unwise,  as  the  rash  spirit  of  innovation  that 
perils  attained  good  on  the  Avild  sea  of  experiment.  To  yield 
slowl}',  to  cling  to  the  old  things  that  have  been  tried,  because 
they  have  been  tried, — even  because  they  are  venerable,  al- 
though their  use  may  have  apparently  passed  away, — to  dis- 
trust new  things,  and  so  to  adopt  them  that  they  may  harmonize 
with  the  old,  has  been  the  practice  of  the  English  people.  It 
has  enabled  them  to  pass  through  great  dangers  without  dis- 
astrous revolutions,  and  gradually,  without  shocks  of  change, 
to  convert  a  feudal  and  almost  absolute  monarchy  into  a  mo- 
narchical and  aristocratic  Republic,  and  to  combine  liberty 
with  order  and  stability.  No  part  of  the  English  Constitution 
exhibits  in  a  more  signal  manner  the  masterly  workmanship  of 
time  than  the  English  Executive  power.  It  has  proved  fully 
equal  to  the  task  of  protecting  the  nation  from  danger,  with- 
out encroaching  upon  the  right  of  personal  liberty.  It  has 
done  this  whilst  acting  in  subordination  to  Legislative  power. 
The  question  now  presented  to  us  is,  shall  we  so  construe  the 
Constitution  as  to  give  to  the  Executive  (in  cases  of  rebellion 
or  invasion)  exclusive  control  over  the  liberty  of  the  citizen,  to 
enable  it  to  defend  the  public  safety  ? 

We  should  do  this,  some  contend,  because  the  President  is 
so  weak  that  he  needs  support  against  the  Legislature,  which 
threatens  to  absorb  all  the  power  of  the  Government.  But  on 
the  point  in  question,  he  would  have  all  the  power  of  the  Eng- 
lish Ministry,  should  the  English  law  be  adopted,  and  experi- 
ence has  shown  that  to  be  sufficient  for  the  purpose.  It  may 
be  said,  moreover,  that  he  has  moi'e  than  all  the  power  of 
Ministers.     They  are  members  of  the  Legislature,  which  he  is 


240  TUE     TRIAL     OF     THE     CONSTITUTION. 

not.  They  therefore  have  a  direct  personal  interest  in  main- 
taining tlic  rights  and  authority  of  the  Legislature,  -whereas 
no  such  influences  act  upon  the  President,  but  as  might  easily 
happen,  one  directly  opposite.  The  Ministry  go  out  of  office 
^vhen  their  important  measures  are  opposed  by  a  majority  of 
Parliament.  The  action  of  Government,  therefore,  responds 
easily  and  promptly  to  the  wishes  of  the  people.  The  Presi- 
dent retains  power  during  his  term,  however  repugnant  his 
policy  ma}^  be  to  Congress  or  to  the  nation.  If,  therefore,  the 
English  law,  which  refuses  to  the  Crown  the  power  of  secret 
and  discretionary  imprisonment,  for  any  cause,  without  the  con- 
sent of  Parliament,  be  wise,  there  is  a  stronger  reason  why 
the  President  should  be  subjected  to  the  same  restraint,  unless 
indeed  there  be  something  in  the  Constitution  of  Congress 
which  renders  that  body  unfit  to  exercise  or  share  the  power. 
But  Congress  represents  the  people,  and  all  parties  of  the 
people,  the  minority  as  well  as  the  majority,  whilst  the  Senate 
more  especially  represents  the  States,  and  was  intended  to  be 
the  conservative  influence  in  our  system  to  restrain  the  impulse 
of  popular  passion.  Experience  has  shown  that  the  President 
is  likely  to  be  the  mere  chief  of  a  party  and  of  tlie  Democratic 
party.  The  natural  tendency  of  a  democracy  is  towards  des- 
potism, and  the  occasion  on  which  it  becomes  despotism  very 
generally  grows  out  of  civil  strife  and  anarchy  engendered  by 
itself. 

In  such  times  bold,  ambitious  men,  of  commanding  talents, 
seize  the  opportunity  offered  by  disorder  and  misrule  to  exe- 
cute their  designs.  Irresponsible  power  to  make  secret  arrests 
would  be  a  formidable  weapon,  fashioned  for  their  purpose. 
It  is  true,  the  terms  of  the  Constitution  confine  its  exercise  to 
the  cases  of  rebellion  and  invasion.  But  what  is  rebellion  or 
invasion?  It  is  easy  to  call  almost  anything  by  these  names, 
in  order  to  give  color  to  wicked  designs,  and  cover  them  with 
the  semblance  of  legality.  When,  some  years  ago,  Mr.  Polk 
and  his  party  wished  to  plunder  Mexico  of  territory,  they  dis- 
covered that  Mexico  had  invaded  our  country.  "  American 
blood  has  been  shed  on.  American  soil,"  they  said.  "War 
therefore  exists."     And  they  made  war  on  that  weak  nation. 


EXECUTIVE    POAVER.  241 

and  got  what  tlicj  wanted  in  territory,  but  not  Avhat  they 
wanted  in  General  Taylor  for  next  President.  Mr.  Polk  de- 
nounced those  who  opposed  the  war  as  "moral  traitors,"  and 
it  would  have  been  a  short  and  easy  step  in  his  logic,  had  his 
purposes  required  it,  to  declare,  that  in  this  case  of  invasion, 
the  public  safety  demanded  the  arrest  of  such  traitors. 

Not  long  ago,  the  people  of  Kansas,  having  been  attacked 
by  armed  bands  from  Missouri,  insulted  by  iniquitous  laws 
imposed  on  them  by  fraud  and  violence,  and  exasperated  at 
seeing  the  Federal  Government  in  league  with  the  men  by 
whom  these  outrages  were  committed,  assembled  together  in 
public  meetings  to  protest  against  such  oppression.  They  went 
so  far  as  to  call  a  convention  to  make  a  Territorial  Constitu- 
tion for  themselves,  instead  of  the  one  which  had  been  made 
for  them  by  the  Missourians.  Mr.  Buchanan  declared  that 
they  were  rebels.  He  marched  troops  against  them.  It  Avould 
have  been  a  plausible  pretext  to  declare  that  the  public  safety 
required  the  suspension  of  the  privilege  of  the  writ  of  Habeas 
Corpus,  because  of  the  rebellion  in  Kansas.  Had  the  Presi- 
dent possessed  the  exclusive  power  to  do  this,  prominent  men 
in  and  out  of  Congress,  who  sympathized  with  the  Kansas 
people,  might  have  been  imprisoned  and  silenced.  But  Mr. 
Buchanan  was  not  fitted  by  nature  to  play  the  part  of  a  usurper, 
or  to  lead  a  fierce  democracy  or  a  Southern  chivalry  to  em- 
pire over  the  ruins  of  a  government.  Had  he  been  so,  he 
would  have  found  backers,  even  at  that  time.  North  and  South. 
The  Lecompton  Constitution,  and  the  eflbrts  to  force  it  upon 
the  Kansas  people,  are  sufficient  proof  of  a  reckless  partisan 
spirit,  and  of  sectional  ambition  that  wanted  only  a  leader  to 
culminate,  as  they  have  since  done,  in  civil  war  and  attempted 
revolution. 

Mr.  Buchanan,  with  all  the  aid  of  his  Southern  and  North- 
ern friends,  and  all  the  influence  of  Executive  patronage, 
failed  to  obtain  a  majority  for  that  iniquitous  measure,  corrupt 
as  Congress  was.  He  would  have  failed  also  had  he  asked 
them  to  suspend  the  Avrit  of  Habeas  Corpus.  But  suppose 
that  he  alone  had  possessed  the  power  to  suspend  it,  and  had 
been  gifted  with  the  commanding  talents  of  a  Cromwell,  or 

16 


242  THE     TKIAL     OF     THE    CONSTITUTION. 

even  with  the  strong  Avill  and  violent  passions  of  a  Jackson. 
Would  not  such  a  power  have  been  a  terrible  engine  in  his  hands, 
supported  as  he  probably  would  have  been  by  the  cheers  of  a 
Northern  democrac}',  and  encircled  as  he  certainly  would  have 
been  by  the  swords  of  a  Southern  army  ?  Other  similar  cases 
might  be  cited  from  our  own  history,  and  many  from  the  annals 
of  other  mitions.  "What  has  happened  before  may  happen  again. 
The  President  is  independent  of  Congress  in  the  mode  of  his 
appointment,  and  in  the  duration  of  his  power.  The  majority 
of  Congress  may  be  opposed  to  his  measures  and  plans,  may 
know  them  to  be  dangerous  and  dishonest,  yet  he  may  be  sus- 
tained by  a  desperate  faction  or  section.  He  may  be  a  man 
of  ability,  courage  and  reckless  ambition.  Democracy  breeds 
and  nurtures  such.  To  invest  one  of  this  character  with  arbi- 
trary authority  over  personal  liberty,  therefore  over  the  free- 
dom of  speech  and  of  the  press,  to  be  exercised  secretly  and 
without  responsibility,  would  be  to  place  at  his  feet,  so  far  as 
the  law  could,  the  liberty  of  the  people  and  the  existence  of 
the  Government.  To  appoint  beforehand  cases  of  "  rebellion 
and  invasion"  as  the  occasions  when  he  might  use  this  power, 
would  merely  be  to  select  the  opportunities  which  he  himself 
would  choose,  periods  of  disorder,  when  armies  were  in  the 
field,  and  men's  minds  excited  by  passion  and  alarm,  and 
when,  with  least  risk,  he  could  accomplish  his  purpose. 

iSTot  only  does  the  President  retain  office  for  his  term, 
though  opposed  by  a  majority  of  Congress,  but  also  against 
the  wishes  of  a  majority  of  the  people.  He  may  become  the 
representative  of  an  aggressive,  violent  and  desperate  faction, 
determined  to  rule  or  ruin.  The  President  may  be  legally 
elected  by  a  minority  of  the  people,  as  was  the  case  both  with 
Mr.  Buchanan  and  Mr.  Lincoln.  He  may  commence  his  term 
with  a  majority  of  Congress,  and  before  the  end  of  it  alienate 
his  friends,  as  did  Mr.  Buchanan.  The  misconduct  of  the 
President,  that  Avould  require  the  restraint  of  the  Legislature, 
ought  and,  in  a  healthy  state  of  public  opinion,  would  deprive 
him  of  the  support  of  his  party.  Mr.  Buchanan  found  himself 
without  a  majority  in  Congress  before  the  close  of  his  term ; 
but  he  had  a  party  outside  of  Congress  arming  to  overturn  the 


EXECUTIVE     POWER.  243 

/ 

Government.  Tie  helped  them  by  inaction,  by  connivance. 
His  own  officers  helped  them  by  surreptitiously  furnishing 
them  "with  weapons  and  ammunition,  the  property  of  the 
Government. 

Tliis  party  claimed  a  constitutional  right  to  extend  slavery 
in  defiance  of  the  will  of  the  Legislature.  They  claimed  also 
a  constitutional  right  to  secede.  They  found  manj^  advocates 
of  both  claims  in  and  out  of  Congress,  in  the  North  as  well  as 
the  South.  If  all  these  were  correct  in  their  opinions,  who 
were  the  rebels  ?  The  South  resisting  illegal  oppression  or 
the  North  resisting;  Mr.  Buchanan  ?  Had  he  been  made  of 
sterner  stuff,  and  been  of  a  nature  to  carry  with  him  the 
passions  of  the  populace,  he  might  have  afforded  his  friends 
more  effectual  aid  than  he  did.  In  that  case  the  authority, 
at  his  discretion,  to  arrest  and  imprison  any  one  who  ventured 
to  oppose  him,  Avould  have  been  a  potent  instrument  in  his 
hands ;  and  armed  with  it,  and  other  Executive  powers,  he 
could,  even  in  the  few  months  he  remained  in  ofiice  after  the 
rebellion  began,  have  given  to  the  war  a  very  different  cha- 
racter from  what  it  now  Avears,  if  indeed  he  would  not  have 
prevented  it  altogether,  by  establishing  the  supremacy  of 
slavery  and  the  South. 

The  Executive  officer  of  our  law,  it  thus  appears,  may  be 
elected  by  a  minority  of  the  people,  or  by  a  section  of  the 
country,  or  by  both,  and  he  may  be  opposed  by  a  majority  of 
Congress,  yet  retain  his  power  for  four  years,  a  period  not  too 
short  for  the  execution  of  ambitious  designs. 

An  English  ministry  is  not  elected  at  all,  but  is  appointed 
by  a  branch  of  the  Government  elevated,  so  far  as  it  can  be 
by  human  means,  above  the  influences  of  partisan  prejudice 
or  popular  passions,  and  bound,  more  than  any,  by  personal 
interest  to  uphold  the  permanent  glory  and  greatness  of  the 
nation.  The  ministry  are  appointed  by  the  monarch,  whose 
rank  and  power  are  not  affected  by  the  rise  and  fall  of  parties, 
and  who  can  only  be  injured  by  a  revolution.  The  officer 
chosen  by  the  Crown  to  administer  the  Government  cannot 
be  a  candidate  of  a  party  united  for  the  purpose  of  placing 
him  in  power,  although  he  may  be  a  representative  of  the 


244  THE    TRIAL    OF    THE    CONSTITUTION. 

principles  of  a  party,  and  he  cannot  hold  power  in  opposition 
to  the  will  of  Parliament,  of  which  he  is  also  a  member.  It 
is,  therefore,  scarcely  possible  that  he  can  become  the  leader 
of  a  faction  whose  purpose  would  be  to  destroy  the  rights  of 
Parliament,  or  to  overthrow  the  Constitution.  Our  expe- 
rience is  far  otherwise,  and  therefore,  Avith  greater  reason 
than  in  the  English  system,  should  the  President  be  subjected 
to  legislative  control  in  a  matter  so  sacred  as  the  security  of 
personal  liberty. 


The  importance  of  the  principle  is  as  well  illustrated  by 
supposing  the  President  sustained  by  a  majority  in  Congress. 
He  would,  therefore,  be  the  more  dangerous,  if  his  intentions 
were  evil,  whether  he  possessed  exclusive  or  co-ordinate  and 
independent  authority  to  suspend  the  privilege  of  the  Habeas 
Corpus.  Before  this  could  be  done,  if  to  do  it  required  the 
sanction  of  Congress,  the  necessity  for  such  a  measure  would 
become  a  subject  for  debate,  in  which  the  minority  could  at 
least  make  an  appeal  to  the  country,  and  perhaps  obtain  a 
hearing,  even  amid  the  turbulence  of  democratic  passions. 
Such  an  appeal,  aided  by  a  free  press,  might  bring  out  the 
patriotism  and  good  sense  and  good  principles  of  the  country, 
and  thus  influence  the  action  of  Congress,  as  happened  Avhen 
the  Lecompton  Constitution  Avas  under  discussion,  or  it  might 
affect  the  election  of  a  succeeding  Congress  before  the  expira- 
tion of  the  President's  term,  as  happened  during  the  adminis- 
tration of  Mr.  Buchanan,  who  began  with  a  large  majority 
and  ended  Avith  a  small  minority.  But  if  the  President  had 
exclusive  power  to  suspend  the  privilege  of  the  Avrit,  he  could 
silence  remonstrance,  denunciation  or  debate,  either  in  the 
Legislature  or  the  press,  and  if  supported  by  an  unscrupulous 
majority  in  Congress,  it  Avould  be  difficult  to  set  any  limits  to 
his  ability  to  do  mischief.  It  would  be  easy  to  call  any  meet- 
ing of  the  people  assembled  to  express  disapproval  of  his 
policy  a  rebellion,  and  as  easy  to  find  that  such  rebellion 


EXECUTIVE     P  0  AV  E  R.  245 

endangered  the  public  safety,  and  thus  the  engine  of  revolu- 
tion or  oppression  might  be  set  in  motion. 

The  case  might  occur  of  a  patriotic  and  A'irtuous  President, 
resisting,  in  a  period  of  popular  excitement,  a  factious  and 
corrupt  majority  of  Congress  in  sympathy  with  a  rebellion 
or  invasion,  and  Avho  therefore  might  refuse  to  authorize  the 
suspension  of  the  privilege  of  the  writ.  As  a  rebellion  is  usu- 
ally connected  Avith  the  interests,  doctrines  or  passions  of  a 
party,  it  has,  in  most  cases,  secret  or  avowed  friends  and  ad- 
herents in  every  rank  of  society,  and  even  in  official  station. 
Such  is  notoriously  the  case  at  the  present  moment.  A 
numerous  party  in  the  ITorth  sympathize  with  the  rebels, 
advocate  their  principles,  magnify  their  power,  extol  their 
victories,  lament  their  defeats,  give  them  secret  aid  and  open 
support,  and  oppose  and  vilify  every  measure  of  the  Govern- 
ment to  restore  the  Union  and  enforce  the  laws.  That  party 
has  its  representatives  in  Congress,  in  the  army,  on  the  Bench, 
even,  it  is  said,  in  the  Executive  departments  of  Government. 
It  often  happens  also  in  a  foreign  war,  that  the  enemy  has 
allies  in  an  invaded  country,  for  a  foreign  war  may  be  also 
connected  with  party  politics.  All  history  is  full  of  such 
examples,  including  our  own.  There  have  been  periods  in  this 
country  Avhen  a  war  with  either  democratic  France  or  con- 
servative England  Avould  have  secured  for  either  a  large  body 
of  passive  Avell-Avishers,  if  not  of  active  adherents. 

But  if,  because  of  these  risks,  the  President  ought  to  be 
clothed  Avith  exclusive  or  independent  control  of  the  Avrit  of 
Habeas  Corpus,  so  ought  he  to  have  the  same  poAver  to  call 
out  the  militia  and  to  provide  for  enlarging  and  supplying 
the  army,  means  even  more  efficient  for  repelling  invasion  or 
quelling  rebellion,  than  authority  to  arrest  suspected  or  sedi- 
tious persons.  In  all  Governments  Ave  must  place  poAver  and 
repose  confidence  somcAvhere,  and  in  this  naughty  world  of 
ours  Ave  can  find  no  other  depository  for  them  than  poor, 
weak,  erring  humanity.  PoAver  Avill  ahvays  be  abused,  Ave 
may  be  sure  of  that.  The  only  question  is,  where  can  it  be 
placed  Avith  the  greatest  chance  of  safety.  It  is  true  that 
the  great  danger  of  a  democracy  is  the  tyranny  of  a  majority. 


246  THE    TRIAL    OF    THE    CONSTITUTION. 

But  the  power  of  a  majority  led  by  a  single  chief  is  far  more 
dangerous  than  that  of  a  majority  represented  in  a  legislative 
assembly,  because  the  former  is  more  prompt,  more  vigorous, 
more  secret  and  more  persistent.  The  action  of  tlie  Legisla- 
ture is  subjected  to  the  delays  of  form,  of  debate,  of  the  resist- 
ance of  the  minority.  It  is  renovated  by  elections  recurring 
during  the  Presidential  term,  which  may  exert  upon  it  the 
influence  of  the  sober  second  thought  of  the  people.  In  our 
Congress  both  branches  must  agree  to  any  measure.  The 
leader  of  a  party,  moreover,  is  apt  to  possess  more  of  the 
qualities  which  dazzle  and  captivate  the  multitude.  A  mili- 
tary hero  is  especially  the  object  of  their  passionate  admira- 
tion. Military  heroes  are  developed  by  war,  by  "  rebellion 
and  invasion,"  and  these  occasions  afford  to  criminal  ambition 
opportunity  to  execute  its  plans. 

For  these  reasons  in  part,  the  natural  tendency  of  a  de- 
mocracy is  towards  a  military  despotism.  An  American 
President  has  been,  and  is  likely  again  to  be,  a  partisan 
democratic  chief.  He  has  been,  and  jjrobably  again  will  be, 
a  "military  hero,"  blindly  and  passionately  supported  by  the 
masses.  He  holds  office  for  four  years,  with  or  without  a 
majority  of  Congress,  with  or  against  the  wishes  of  a  majority 
of  the  people,  and  in  either  case  it  might  be  dangerous  or 
fatal  to  public  liberty  to  invest  him  with  exclusive  power  over 
private  liberty.  Wiser  and  safer  is  the  English  plan,  which 
places  both,  together  with  the  public  safety,  under  the  charge 
of  the  wliole  Government,  requiring  the  action  of  the  Execu- 
tive branch  to  suspend  the  privilege  of  the  Habeas  Corpus, 
and  the  thought  of  the  Legislature  to  determine  the  necessity 
for  a  measure  which  nothing  but  necessity  can  justify. 

It  may  be  supposed  that  the  power  of  impeachment  vested 
in  Congress  is  a  sufficient  restraint  on  Executive  abuse. 
Where  the  President  is  the  offender,  however,  and  in  cases  of 
real  danger,  it  would  not  prove  effectual.  The  same  reason 
that  has  rendered  an  English  monarch  irresponsible,  and 
given  rise  to  the  maxim  that  the  King  can  do  no  wrong,  ap- 
plies to  our  Chief  Magistrate.  A  President  could  hardly  be 
punished  without  causing  a  civil  Avar.     To  be  elected  he  must 


EXECUTIVE    POWER.  247 

have  a  party.  Unless  he  were  a  man  of  talents  and  forcible 
character,  and  supported  by  a  strong  party,  he  would  not  at- 
tempt to  carry  extreme  measures  by  violent  means,  or  to  over- 
throw the  Government,  either  of  which  implies  a  state  of  high 
popular  excitement.  A  strong  party  inflamed  by  passion, 
would  not  permit  a  leader  of  powerful  ability  to  be  punished, 
and  the  attempt  to  punish  would  precipitate  a  revolution. 
The  penalty,  in  case  of  conviction  on  impeachment,  extends 
only  to  loss  of  office,  and  a  man  who  has  made  up  his  mind  to 
the  daring  attempt  of  destroying  the  Union  or  overturning 
the  Government,  has  already  taken  a  worse  fate  than  that 
into  his  account.  Impeachment,  therefore,  is  possible  only 
against  a  weak  President,  with  a  weak  party,  in  quiet  times. 
It  would  prove  a  feeble  defence  amid  the  storms  of  popular 
passion,  when  bold  men  are  tempted  by  opportunity  to  plunge 
into  crime.  The  very  possession  by  a  party  leader  of  such  a 
weapon  as  the  power  of  secret  imprisonment  might  determine 
his  action. 

"  How  oft  the  sight  of  means  to  do  ill  deeds 
Makes  ill  deeds  doue.'' 

In  the  beginning  of  the  reign  of  Charles  I  (1628),  which, 
ere  it  closed  was  destined  to  develop  and  establish  the  prin- 
ciples of  English  liberty,  the  young  king,  among  other  things, 
boldly  claimed  the  power  of  committing  to  prison,  without 
specifying  any  offence  in  the  warrant  of  commitment,  and  the 
Judges,  under  his  influence,  decided  that  they  had  no  power 
to  examine  such  commitments  and  admit  the  prisoner  to  bail. 
This  and  other  similar  assumptions  were  resisted  by  Parlia- 
ment, which  then  gave  tokens  of  the  free  spirit  which  after- 
wards hurled  this  king  from  his  throne,  and  that  resistance 
was  indeed,  as  Lord  Campbell  says,  "  the  grand  crisis  of  the 
English  Constitution."*  It  was  the  commencement  of  the 
struggle  for  ancient  rights  that  ended  in  their  triumphant  es- 
tablishment on  a  firm  basis  in  1688.  Sir  Edward  Coke  was  a 
member  of  the  first  Parliament  of  Charles  I,  and  sounded  the 

*  1  Campbell's  Lives  of  the  Chief  Justices,  270. 


248  THE    TRIAL    OF    THE    CONSTITUTION. 

charge  in  resistance  to  Ins  arrogant  demands.  He  opposed 
the  King's  claim  of  the  right  to  imprison,  and  denied  the  le- 
gality of  the  decision  of  the  Judges  in  these  words  :  "  What 
is  it  hut  to  declare  upon  record  that  any  subject  committed  by 
such  absolute  command,  may  be  detained  in  prison  forever  ? 
What  doth  this  tend  to  but  the  utter  subversion  of  the  choice, 
liberty  and  right  belonging  to  every  freeborn  subject  in  this 
Kingdom  ?  A  Pcn^liament  brings  Judges,  officers,  and  all  men 
into  good  order."  He  succeeded  in  carrying  resolutions 
which  half  a  century  later  were  made  the  foundation  of  the 
Habeas  Corpus  Act.  So  thought  this  great  lawyer  fifty 
years  before  the  English  people  obtained  the  writ,  which  has 
since  been  called  the  bulwark  of  their  liberties  ;  so,  as  we  have 
endeavored  to  show,  thought  the  makers  of  our  Constitution 
a  hundred  years  after  that  writ  had  been  in  successful  opera- 
tion ;  so  ought  Congress  now  to  think,  Avhen  the  ordeal 
through  which  the  Government  is  passing  indicates  the  wisdom 
of  the  English  law  and  of  the  whole  law.  At  any  rate,  the 
law  should  now  be  permanently  settled  by  an  authoritative 
precedent,  for  open  constitutional  questions  are  mischievous 
evils.  The  experience  of  the  past  as  Avell  as  the  needs  of  the 
present,  point  out  a  simple  and  easy  mode  of  settlement. 
Let  Congress  pass  a  bill,  reciting  the  expediency  of  removing 
all  doubt  on  the  subject,  ratifying  the  acts  of  the  President  on 
the  ground  of  urgent  necessity,  indemnifying  him  and  all  of 
his  officers  for  all  arrests  heretofore  made,  and  suspending  the 
privilege  of  the  writ  of  Habeas  Corpus  during  the  war. 


These  and  other  elements  in  the  instrument  of  Executive 
power  invented  by  the  Constitution,  in  Avhich  it  differs  from 
the  English  model,  are  yet  to  be  tested  by  time.  An  English 
King  occupies  the  highest  station,  social  and  political,  in  the 
realm.  He  holds  his  place  for  life  by  inheritance,  by  legal 
right,  and  is  under  no  obligations  for  it  to  a  party  or  to  the 
people.  His  right  is  vested  before  he  is  crowned,  and  can 
only  be  divested  by  a  revolution.     He  represents  the  dignity 


EXECUTIVE     POWER.  249 

and  power  of  the  nation  at  home  and  abroad.  The  people  are 
his  "  subjects."  The  island,  its  colonies  and  dependencies  are 
his  "  dominions."  All  the  officers,  civil  and  military,  are  his 
"  servants,",  of  whom  he  is  the  "  august  master."  The  army 
and  navy  belong  to  his  "  majesty,"  and  all  executive  acts  of 
Government  are  done  by  his  "command."  He  is  lapped  in 
splendor  and  luxury  ;  he  is  encompassed  by  pomp  and  cere- 
mony ;  he  is  clothed  with  the  prestige  of  antiquity,  and  his 
throne  and  crown  are  lustrous  with  the  gems  of  national 
tradition  and  glory.  He  has  therefore  great  social  influence, 
and  political  influence  also,  according  to  his  talents  and  ambi- 
tion, but  he  has  no  real  political  power.  Gradually  and  cau- 
tiously that  has  been  taken  from  him  by  the  free  spirit  of  the 
people,  and  lodged  Avhere  it  is  under  their  control.  PoAver  is 
given  to  the  Ministers,  who,  though  appointed  by  the  King 
and  removable  by  the  King,  are  also  members  of  the  Legisla- 
ture, and  as  they  cannot  carry  on  the  Government  without  the 
aid  of  the  Legislature,  the  Crown  is  under  the  necessity  of 
selecting  Ministers  agreeable  to  it. 

The  result  of  all  this  unique  machinery,  the  slow  growth  of 
ages,  is  manifold.  Executive  power  is  subjected  to  Legisla- 
tive, and  thus  mediately  to  public  opinion,  whilst  the  person 
who  wields  it,  not  being  chosen  by  the  people,  and  aftccted 
only  indirectly  by  an  election,  is  not  likely  to  become  a  par- 
tisan leader  or  demagogue.  He  is  never  a  candidate,  cannot 
therefore  promise  office  and  emolument  to  active  adherents, 
and  thus  corruptly  influence  elections.  His  term  of  office  is 
uncertain,  as  he  can  be  removed  directly  by  the  Crown  and 
indirectly  by  Parliament,  and  therefore  he  cannot,  supported 
by  a  faction,  set  both  at  defiance  during  a  period  fixed  by  law. 
The  power  moreover  is  not  exercised  by  one  person,  but  by 
several,  who  share  its  authority  and  responsibility,  vvho  form 
indeed  an  Executive  Council.  A  position  so  checked  and 
limited,  though  a  worthy  object  of  honorable  ambition,  is  not 
likely  to  become  either  the  object  or  the  instrument  of  criminal 
ambition.  It  would  not  satisfy  a  Cjiesar  or  a  Kapoleon,  nor 
could  it  be  for  them  a  stepping-stone  to  a  higher  seat.  The 
sword  and  the  ballot-box,  the  hustings  and  the  battle-field  are 


250  THE    TRIAL     OF    THE     CONSTITUTION. 

the  appropriate  weapons  and  spheres  of  such  men,  and  it  is  to 
preserve  liberty  from  such  that  the  English  Constitution  was 
created. 

The  Monarch,  not  the  Minister,  holds  the  higlncst  place  in 
the  kingdom.  He  is  invested  with  rank,  influence,  splendor, 
and  he  has  them  all  for  life.  The  English  Throne,  represent- 
ing the  majesty  and  nationality  of  the  English  people,  is  sur- 
rounded by  everything  that  can  tempt  worldly  ambition,  and 
for  that  reason  it  is  jealously  guarded  against  worldly  ambi- 
tion. The  person  to  fill  it  is  ascertained  beforehand  by  law. 
Birth  chooses  the  king,  not  talents,  character  or  personal 
qualities  of  any  kind.  Wefe  it  otherwise,  such  a  prize 
would  become  the  object  of  prominent  men  and  powerful 
parties,  and  the  death  of  the  Monarch  would  be  the  signal 
of  civil  war,  or  if  its  possession  depended  on  an  election,  of  a 
contest  almost  as  dangerous  as  civil  war,  and  very  likely  to 
lead  to  one.  The  terrible  risks  of  a  disputed  succession,  of 
revolution  and  anarchy,  are  thus  avoided,  for  the  succession 
will  always  be  disputed  if  at  all  doubtful.  Herein  lies  the 
philosophy  of  the  hereditary  principle  of  the  English  Govern- 
ment. It  prevents  civil  war  and  revolution,  of  which  the  En- 
glish people  have  had  some  bitter  experience,  is  therefore 
upheld  by  them  with  reverence  and  loyal  tenacity,  and  there- 
fore too,  whilst  depriving  the  Crown  of  power  over  their  liber- 
ties, they  have  lavished  upon  it  everything  else  that  pride  and 
affection  can  bestow. 

Not  in  England  only,  however,  is  the  hereditary  principle 
cherished,  and  for  the  same  reason, — to  prevent  a  contest  for 
the  place  of  supreme  power  and  dignity,  even  by  an  election ; 
for  the  struggle  caused  by  such  a  prize  is  likely  to  be  too  ex- 
citing to  be  settled  by  a  count  of  votes.  Even  France,  learned 
in  revolutions  and  professing  democracy,  has  been  forced  to 
adopt  the  hereditary  principle,  to  avoid  the  horrors  and  dan- 
gers of  both.  •  The  old  Royalty  and  the  old  King  were  killed 
by  the  Jacobins.  When  the  fever-fit  was  over,  it  was  found 
that  neither  could  by  any  process  be  restored  to  life,  but  only, 
by  galvanic  battery,  into  short,  hideous  show  of  life.  The  old 
feudal  monarchy  and  the  Bourbons,  who  could  neither  learn 


EXECUTIVE     POWER.  251 

any  tiling  nor  forget  anything,  were  behind  the  age.  The  age 
or  the  French  people,  however,  were  not  up  to  a  Republic, 
not  even  to  a  limited  monarchy, — that  is  to  say,  to  an  Execu- 
tive power  subordinate  to  the  Legislative.  Their  Celtic  blood 
demanded  the  one  man  power  or  despotism.  The}'  got  a  very 
splendid  despotism,  but  soon  reflected  that  their  despot  was 
not  immortal,  and  therefore  at  his  death,  somebody  else  would 
be  eager  to  fight  for  the  place  he  had  won  by  fighting,  and 
thus  the  miseries  of  the  Revolution  would  be  renewed.  They 
therefore  attempted  to  found  a  new  dynasty  of  Bonapartes, — 
not  feudal,  but  popular.  The  despot  was  not  King  of  France, 
but  Emperor  of  the  French.  *  The  attempt  failed, — for  the 
time,  at  least.  The  continuity  of  the  dynasty  was  broken  by 
the  overthrow  of  the  Emperor,  by  an  effort  to  revive  the  old 
monarchy,  by  an  effort  to  establish  a  modern  limited  monarchy, 
by  another  vain  effort  to  get  up  a  Republic,  and  now,  at  length, 
after  much  bloodshed  and  disorder,  the  Celtic  nature  of  the 
French  has  brought  them  back  again  to  a  popular  despotism 
and  a  Bonaparte. 

Taught  by  accumulated  experience  the  woes  of  revolution, 
France,  in  order  to  escape  from  them,  has  already  engrafted 
the  hereditary  principle  on  its  second  despotism ;  nay,  to  make 
it  stronger,  has  declared  that  it  exists  only  by  virtue  of  the 
hereditary  principle  infused  into  the  first, — thus  giving  it  a 
little  root  in  the  past.  Louis  Napoleon  is  Napoleon  III,  the 
Government  of  the  Empire  founded  by  ISTapoleon  I  having 
never  legally  ceased  to  exist,  notwithstanding  the  interrup- 
tions of  feudalism,  limited  monarchy,  and  republicanism. 
France,  therefore,  tormented  by  memories  of  past  anarchy 
and  fearful  of  its  recurrence,  has  been  twice  obliged  to  turn 
for  refuge  to  the  dark  and  gloomy  shelter  of  hereditary  des- 
potism ;  in  other  words,  to  arbitrary  Executive  power,  which 
the  people  do  not  confer,  in  the  administration  of  which  they 
do  not  participate,  and  which  is  hereafter  to  be  wielded  by 
one  who,  if  he  possesses  either  talents  or  virtues,  is  at  best  a 
happ3'  accident. 

What  a  history,  and  what  fearful  tales  of  human  sufi'ering 
does  it  not  imply  !     First  a  corrupt,  decayed,  effete  monarchy 


252 


THE    TRIAL     OF    THE     CONSTITUTION. 


and  aristocracy,  Avliich  had  grown  away  and  apart  from  the 
people,  and  therefore  wanted  the  sap  of  life,  overturned  by  a 
revolution  inspired  by  great  and  noble  thoughts  and  senti- 
ments ;  then  democracy,  producing  anarchy ;  and  then,  as  a 
refuge  from  that,  military  despotism  ;  then  long,  exhausting 
and  horrible  wars,  growing  out  of  the  despotism ;  then  con- 
quest and  the  past  put  forcibly  back  by  the  enemy ;  then  spas- 
modic efforts  to  find,  some  safe  means, — some  juste  milieu, — 
between  the  disorders  of  democracy  and  the  degradation  of 
despotism ;  then  democracy  again,  and  anarchy ;  and  then, 
again,  a  despot,  and  the  humiliation  of  being  governed  by  Avill 
and  not  by  law,  with  all  noble  hearts  embittered  by  vain  long- 
ings for  liberty,  for  which  so  many  costly  sacrifices  had  been 
made  in  vain,  with  present  tranquillity  and  material  prosperity 
dependent  on  the  life  and  conduct  of  the  present  Emperor,  and 
the  future  dark  as  before  with  lowering  clouds. 

Very  different  during  the  same  period  has  been  the  history 
of  England.  The  cause  of  the  difference  is  to  be  found,  not 
in  political  institutions,  but  in  the  inherent  qualities  of  the 
English  and  French  people ;  for  out  of  these  do  principles  and 
forms  of  government  grow.  Each  began  with  feudalism,  from 
which  France  broke  violently  away,  and,  through  bloodshed, 
violence,  terror  and  crime,  reached  military  despotism ;  whilst 
England,  by  slow  and  peaceful  changes,  with  steady  advance 
in  prosperity  and  poAver,  has  built  up  a  Constitution  which 
combines  in  a  harmonious  whole  republicanism  without  demo- 
cracy, an  aristocracy  interwoven  with  the  blood,  business,  inte- 
rests and  affections  of  all  classes  of  the  people,  and  an  Execu- 
tive power  which  unites  hereditar}^  rank  and  regal  magnificence 
with  the  authority  of  a  Chief  INIagistrate  controlled  by  the  Le- 
gislature. This  Constitution  was  impossible  for  France.  It 
is  the  outgrowth  of  the  genius  of  the  Saxon  race,  and  expresses 
its  character. 

Our  ancestors  brought  its  principles  across  the  Atlantic 
with  them,  because  they  brought  their  Saxon  blood  and  native 
love  for  liberty,  order  and  law.  They  could  not  bring  the 
forms  of  the  Constitution,  for  some  of  them  were  inconsistent 
with  the  new  circumstances  in  which  they  were  placed.     They 


EXECUTIVE     1'  0  W  E  R.  253 

could  not  bring  royalty  and  the  hereditary  principle.  They 
were  obliged  to  leave  these  out  of  their  plan.  The  organiza- 
tion of  the  Executive  department  -was  the  most  difficult  task  of 
the  Convention.  Many  schemes  were  offered.  An  Executive 
Council ;  a  President  chosen  by  the  Legislature ;  a  President 
for  life,  and  for  longer  and  shorter  terms  were  severally  pro- 
posed and  discussed.  At  length  the  Convention  decided  on  a 
President  to  hold  office  for  four  years,  chosen,  not  directly  by 
the  people,  but  by  an  Electoral  College  selected  by  them. 
He  has  neither  rank,  title  nor  splendor,  but  he  has  substantial 
power,  and  is  very  like  what  an  English  Prime  Minister  would 
be  if  the  monarchy  were  abolished  and  he  were  elected  by  the 
people  for  a  term  of  years.  It  is  obvious  that  Executive 
power  so  lodged  exposes  the  country  to  all  the  perils  avoided 
by  the  English  system,  of  an  hereditary,  irresponsible  King, 
combined  with  a  responsible  and  removable  ministry  appointed 
by  the  King.  The  highest  political  position  is  thrown  before 
the  people  as  a  prize  for  contending  parties  led  on  by  ambi- 
tious men.  All  the  passions  of  a  popular  election  are  periodi- 
cally brought  into  action  and  stimulated  by  a  stake  of  immense 
importance,  representing  the  innumerable  private  interests 
influenced  by  Executive  patronage,  the  interests  and  rivalry 
of  classes  and  of  sections,  and  the  principles,  often  the  exas- 
perated passions,  of  political  parties. 

Such  a  process,  repeated  at  short  intervals,  supposes,  and 
to  be  safe  requires,  great  general  intelligence  among  the 
people,  and  great  order  and  fairness  in  the  manner  of  con- 
ducting elections.  It  requires,  also,  as  an  essential  condition, 
the  quiet  acquiescence  of  the  whole  people  in  the  result  of  an 
election. 

The  defeated  party  must  submit  peaceably,  otherwise  the 
evils  of  a  disputed  succession,  which  is  nothing  less  than  civil 
war,  will  surely  follow.  The  ballot-box  is  the  American  sub- 
stitute for  the  European  principle  of  hereditary  right.  The 
ballot-box  designates  the  person  entitled  to  possess  the  coveted 
bauble  of  power  here,  just  as  birth  does  in  England  and  else- 
where. But  if  the  decision  of  an  election  be  disregarded, 
then  Avould  commence  the  reign  of  violence  here  just  as  it 


254  THE    TRIAL    OF    THE    CONSTITUTION. 

would  in  England  were  an  attempt  made  to  set  aside  the  law- 
ful heir  to  the  Crown. 

Since  the  adoption  of  the  Constitution  we  have  had  sixteen 
Presidents;  and  though  it  cannot  be  said  that  the  elections 
have  been  entirely  free  from  fraud  and  violence,  they  have 
not  been  marked  by  flagrant  or  dangerous  examples  of  either. 
But  we  have  already  reached  a  period  when  the  decision  of 
the  ballot-box  has  been  forcibly  resisted.  A  powerful  party 
and  section  threatened  to  overturn  the  Government  should  a 
President  be  elected  not  chosen  by  themselves.  They  have 
kept  their  promise.  We  are  now  in  the  midst  of  a  civil  war 
growing  out  of  a  disputed  succession,  and  one  of  the  defeated 
candidates  is  at  this  moment  in  arms  against  the  Government, 
to  whose  highest  ofiice  he  dared  to  aspire,  with  that  threat 
hot  on  his  lips.  Our  elective  monarchy — for  the  President  has 
all  the  power  of  an  English  ministry,  and  more  than  the  power 
of  an  English  King — has  failed  to  maintain  the  tranquillity  of 
the  country  and  save  it  from  rebellion  and  attempted  revolu- 
tion. It  is  still  on  trial.  Perhaps  the  present  war,  by  estab- 
lishing the  principle  that  the  ballot-box  must  be  obeyed,  may 
place  the  Executive  branch  of  the  Government  on  a  surer 
basis. 

If  it  be  important  that  the  manner  in  which  the  chief  Exe- 
cutive officer  of  a  Government  is  chosen,  be  such,  as  not  to 
endanger  its  existence  or  the  peace  of  society,  the  clioice  made 
is  no  less  important.  Power  in  weak  or  Avicked  hands  is  a 
dangerous  thing,  against  reason,  and  a  sad  and  monstrous 
spectacle  under  the  sun,  however  often  exhibited.  The  natu- 
ral allies  of  power  are  wisdom  and  goodness,  and  only  when 
so  allied  is  its  influence  benign.  Integrity  and  a  certain  de- 
gree of  ability  are  conditions  essential  to  the  Executive  office. 
How  to  secure  them  is  the  difficult  question.  In  hereditary 
monarchies,  where  the  King  exercises  substantial  power,  the 
qualities  which  are  to  direct  that  power  depend  on  the  acci- 
dent of  birth.  There  is  always  a  chance  that  he  may  be 
wholly  incompetent.  Probabilities  are,  however,  much  in 
favor  of  his  possessing  average  ability,  and  that  what  is  weak 
in  liim  will  be  supported,  what  is  evil  restrained,  what  is  good 


EXECUTIVE     POWER.  255 

developed,  hj  a  careful  education,  by  his  obvious  interest,  by 
custom  and  tradition,  by  wise  advisers  and  by  public  opinion. 
Should  all  these  fail,  he  cannot  live  forever  ;  and  the  evil  that 
he  can  inflict,  Europe  thinks,  may  Avell  be  borne  during  one 
short  life,  for  the  sake  of  the  security  afforded  by  the  here- 
ditary system,  from  the  dreaded  miseries  of  revolution. 

The  English  Constitution,  as  already  mentioned,  avoids 
this  danger  by  means  of  the  hereditary  element,  but  it  does 
not  leave  to  chance  the  selection  of  the  person  who  is  to  exer- 
cise Executive  power.  By  contrivance  wonderful  as  the  roots 
and  branches  and  leaves  of  a  tree,  that  person  is  both  a 
legislator  and  a  member  of  an  Executive  Council,  and,  clothed 
with  power,  is  also  subjected  to  duty  and  responsibility.  He 
is  appointed  by  one  who  never  dies,  and  who,  because  of  this 
legal  earthl}^  immortality  has  every  earthly  motive  to  make  a 
good  appointment  and  no  possible  motive  to  make  a  bad  one, 
and  moreover  must,  under  any  ordinary  circumstances,  make 
a  selection  from  a  small  circle  of  eminent  men,  known  to  the 
nation.  By  this  same  incarnation  of  permanent  authority,  the 
person  thus  chosen  may  be  removed,  but  from  the  workings  of 
other  parts  of  the  system,  it  is  almost  impossible  that  he  should 
be  so  removed  for  any  but  the  gravest  reasons.  Whilst  the  ap- 
pointing power  is  placed  above  temptation,  it  has  the  best  means 
of  becoming  acquainted  with  the  talents  and  character  of  dis- 
tinguished men  likely  to  aspire  to  high  stations  and  worthy  to  fill 
them.  Finally,  when  the  choice  is  made,  the  person  chosen 
must  resign  his  place  unless  he  can  satisfy  the  judgment  of 
the  most  intelligent,  highly  educated,  critical,  fastidious  and 
thoroughly  practical  assembly  of  men  on  earth,  the  British 
Parliament,  representing  the  enlightened  opinion  of  a  people 
jealous  of  liberty,  rich  in  the  treasures  of  long  civilization, 
and  haughty  with  the  pride  of  ancient  power  and  glory. 

These  are  severe  tests.  If  they  cannot  always  secure  the 
choice  of  the  best  men,  they  Avill  be  sure  to  prevent  the  selec- 
tion of  very  bad  ones,  or  speedily  to  get  rid  of  such,  if 
selected.  They  form  against  tribunitian  arts,  demagogueism 
and  military  heroism,  a  barrier  which  cannot  be  easily  under- 
mined or  overthrown.     It  would  foil  the  cunning  of  a  Cati- 


25G  THE     TRIAL     OF     THE     CONSTITUTION. 

line  and  repel  the  genius  of  a  Napoleon,  as  British  bayonets 
repelled  his  magnificent  charges  at  "Waterloo.  The  true  char- 
acter of  the  Executive  branch  of  the  English  Government 
must  be  judged,  not  from  the  list  of  its  Kings  and  Qnieens, 
though  that  has  illustrious  names,  but  of  its  ministers.  These 
exhibit  an  array  of  ability  and  integrity,  not  surpassed,  if 
equalled,  in  the  annals  of  any  other  nation. 

They  are  certainly  not  surpassed  by  our  own.  It  is  a  plausi- 
ble theory  that  a  people  fit  for  freedom  ought  to  have  the  privi- 
lege of  choosing  the  magistrate  who  is  to  exercise  their  power 
and  represent  their  nationality  ;  also,  that  to  prevent  abuses 
and  avoid  the  ill  consequences  of  their  own  mistaken  choice, 
they  should  be  able  to  exercise  this  privilege  at  short  inter- 
vals. But  it  is  rash  to  predicate  of  the  masses  of  any  nation, 
sufiicient  intelligence  and  discretion  to  make  a  judicious 
choice,  and  it  is  expecting  much  to  impose  upon  them  this 
difficult  task  every  four  years,  for  they  are  proverbially  apt 
to  be  led  astray  by  false  lights,  easily  deceived  and  easily  in- 
fluenced by  passion.  The  heart  of  the  people  responds  quickly 
to  great  virtues  when  displayed  on  some  difficult  emergency. 
But  unless  so  displayed,  the  multitude  cannot  recognize 
talents  or  high  moral  qualities  and  are  prone  to  be  deluded 
by  pretension  and  falsehood.  They  are  open  to  flattery  and 
easily  led  by  a  plausible  tongue  to  indulge  extravagant  hopes 
of  visionary  good.  They  are  peculiarly  susceptible  to  party 
spirit  and  readily  become  passionate  and  obstinate  partisans, 
sticking  to  a  dogma  and  to  a  leader,  right  or  wrong,  for  the 
sake  of  victory. 

For  these  reasons  party  leaders  and  demagogues  often 
obtain  complete  control  of  the  masses,  direct  their  thoughts 
and  will,  and  dictate  their  principles  and  their  votes,  unless 
when  a  great  crisis,  like  the  present,  rouses  the  nation  from 
its  normal  state  by  violent  crimes  and  imminent  dangers. 
Then,  if  any  healthy  life  be  left  in  the  people,  they  rise 
together  and  rally  round  their  flag  and  their  country,  and 
Avhoever  can  best  serve  both,  and  they  forget  party  ties 
and  spurn  old  leaders,  as  they  are  now  doing  here.  But 
the  rock  must  be  struck  a  hard  blow  bv  the  divine  rod  of  suf- 


EXECUTIVE     POWER.  2r)7 

fering  and  peril  before  such  waters  flow.  Noble  sentiment 
and  mental  energy  are  not  produced  by  peace  and  plenty,  but 
instead,  apathy  among  the  people  and  corruption  in  the  state  ; 
mobs  and  demagogues,  misrule,  sedition,  rebellion  and  revo- 
lution. A  Constitution  should  prevent  these  evils  b}^  found- 
ing its  provisions  upon  the  real  character  and  habitual  con- 
duct of  the  nation  to  be  governed  by  it,  otherwise  it  must 
fail.  The  interests  involved  in  the  choice  of  a  President  are 
a  valuable  freight  to  be  trusted,  and  at  short  intervals,  to  the 
billoAvs  of  so  uncertain  a  sea  as  the  fluctuating  opinions  and 
passions  of  the  ignorant  and  mutable  many. 


Our  ancestors  did  not  intend  so  to  trust  them.  .  They  did 
not  intend  that  the  President  should  be  elected  directly  by  the 
people,  but  that  he  should  be  the  "  chosen  of  the  chosen." 
They  interposed  between  the  President  and  the  people  an 
Electoral  College,  subjected  to  many  conservative  restraints 
and  provisions  to  prevent  intrigue,  and  to  shield  it  from  the 
influence  of  popular  folly  and  passion.  The  President  was 
meant  to  be  the  choice  of  the  electors, — not  of  the  people, — 
and  the  former  are  not  elected  by  the  people,  but  appointed 
by  the  States,  in  the  manner  directed  by  the  Legislatures 
thereof.  These  provisions  manifest  a  desire  to  avoid  the  dan- 
gers of  a  popular  election  for  an  office  wherewith  interests  so 
important  and  topics  so  exciting  are  necessarily  connected. 

To  determine  the  mode  by  which  the  President  should  be 
appointed  was  the  most  difficult  and  delicate  task  before  the 
Convention,  for  it  was  that  part  of  their  work  in  which  they 
had  least  assistance  from  the  past.  The  English  model  was 
out  of  the  question.  Any  leaning  towards  it,  in  the  existing 
temper  of  the  people,  would  have  endangered  the  ratification 
of  the  Constitution,  Avhile  granting  too  much  to  the  excited 
democratic  tendencies  of  the  hour  would  have  insured  its  fail- 
ure in  practice.  The  Convention  went  as  far  as  they  dared  in 
favor  of  conservative  principles,  though  not  so  far  as  some  of 
them  desired.     The  wisest  among  them  had  serious  doubts  and 

IT 


258  THE    TRIAL    OF    THE    CONSTITUTION. 

misgivings,  not  so  much  as  to  the  power  conferred  on  the  Pre- 
sident, but  as  to  the  manner  in  which  he  is  chosen  and  the  du- 
ration of  his  term  of  office,  both  of  which  might  involve  it  in 
tlie  dangerous  vortex  of  popidar  passion,  in  which  terrible 
maelstrom  the  Constitution  might  also  be  engulfed.  Much, 
evidently,  was  hoped  from  the  electors,  as  is  clear  from  the 
following  remarks  of  Mr.  Hamilton  in  the  Federalist,  No.  58: 

"It  is  desirable  that  the  sense  of  the  people  should  operate  in 
the  choice  of  the  person  to  whom  so  important  a  trust  is  to  be 
confided.  This  end  will  be  answered  by  committing  the  right 
of  making  it,  not  to  any  pre-established  body,  but  to  men  cho- 
sen by  the  people  for  the  special  purpose  and  at  the  particular 
juncture. 

"It  was  equally  desirable  that  the  immediate  election  should 
be  made  bj  men  most  capable  of  analyzing  the  qualities  adapt- 
ed to  the  station,  and  acting  under  circumstances  favorable  to 
deliberation,  and  to  a  judicious  combination  of  all  the  reasons 
and  inducements  proper  to  govern  their  choice.  A  small  num- 
ber of  persons,  selected  by  their  fellow-citizens  from  the  gene- 
ral mass,  will  be  most  apt  to  possess  the  information  and  dis- 
cernment requisite  to  so  complicated  an  investigation. 

"It  was  also  peculiarly  desirable  to  afford  as  little  opportu- 
nity as  possible  to  turmoil  and  disorder.  This  evil  was  not 
least  to  be  dreaded  in  the  election  of  a  magistrate  who  was  to 
have  so  important  an  agency  in  the  administration  of  the  Go- 
vernment. But  the  precautions  which  have  been  so  happily 
concerted  in  the  system  promise  an  effectual  security  against 
this  mischief.  The  choice  of  several^  to  form  an  intermediate 
body  of  electors,  will  be  much  less  apt  to  convulse  the  commu- 
nity Avith  any  extraordinary  or  violent  movements  than  the 
choice  of  one,  who  was  himself  to  be  the  final  object  of  the 
public  wishes.  .  .  .  Nothing  was  more  to  be  desired  than  that 
every  practicable  obstacle  should  be  opposed  to  cabal,  intrigue 
and  cormption.  These  most  deadly  enemies  of  republican  go- 
vernment might  naturally  have  been  expected  to  make  their 
approaches  from  more  than  one  quarter.  .  .  .  But  the  Con- 
vention have  guarded  against  all  dangers  of  this  sort  with  the 
most  provident  and  judicious  attention.     They  have  not  made 


EXECUTIVE    POWER.  259 

the  appointment  of  the  President  to  depend  on  pre-exhting 
bodies  of  men,  who  might  he  tampered  ivith  beforehand  to  pros- 
titute their  votes,  but  they  have  referred  it  in  the  first  instance 
to  an  immediate  act  of  the  American  people,  to  be  exerted  in 
the  choice  of  persons  for  the  temporary  and  sole  purpose  of 
making  the  appointment.  And  they  have  excluded  from  eli- 
gibility to  this  trust  all  those  who,  from  situation,  might  be 
suspected  of  great  devotion  to  the  President  in  office.  No  Sena- 
tor or  Representative,  or  other  person  holding  a  place  of  trust 
or  profit  under  the  United  States,  can  be  of  the  number  of  the 
electors.  Thus,  without  corrupting  the  body  of  the  people,  the 
immediate  agents  of  the  election  will  at  least  enter  upon  the 
task  free  from  any  sinister  bias." 

These  passages,  whilst  they  indicate  a  full  sense  of  the  dan- 
gers of  a  i^opular  election,  show  also  how  much  the  Conven- 
tion trusted  to  the  electoral  body  they  had  provided,  as  a  re- 
straining influence  upon  the  rash  impulses  of  the  masses,  and 
a  discriminating  power  to  winnow  their  opinions  from  the  chaff 
of  ignorance,  folly  and  passion.  They  prove,  also,  that  the 
Convention  had  before  their  minds  the  English  Ministry  as 
their  model,  and  followed  it  as  closely  as  they  could  with  the 
materials  at  their  disposal.  They  endeavored  to  place  the 
power  of  choosing  the  chief  Executive  officer  in  hands  ele- 
vated as  far  as  possible  above  intrigue,  corruption,  and  party 
spirit,  and  at  the  same  time  to  subject  him  to  the  indirect  con- 
trol of  the  people.  They  failed,  and  their  failure  is  a  signal 
instance  of  the  impotence  of  a  written  Constitution  that  does 
not  accord  with  the  spirit  and  tendencies  of  the  people, — of  the 
certainty  that  it  will  become  the  instrument  of  these. 

It  is  surprising  that  the  Convention  did  not  foresee  the  fail- 
ure of  their  plan,  as  the  expedient,  immediately  adopted,  of 
choosing  electors  pledged  to  support  a  particular  candidate, 
was  so  obvious  that  it  might  well  have  been  anticipated.  The 
Constitution  had  scarcely  been  set  in  motion,  before  the  elec- 
tors became  a  mere  form,  chosen  without  the  slightest  reference 
to  their  character,  and  exclusively  as  the  organ  of  the  popular 
will.  They  have  no  power  of  deliberation  or  choice  Avhatever, 
and  their  sole  province  is  to  register  the  popular  vote. 


260  THE     TRIAL     OF     THE     CONSTITUTION. 

This  conservative  element  of  the  Constitution  has  thus  been 
utterly  abolished,  and  our  history  shows,  that  every  evil  and 
danger  against  which  it  was  intended  to  guard,  has  occurred. 
President-making  has  become  the  vice  of  our  politics,  a  moral 
nuisance  and  calamity  to  the  nation.  It  is  the  trade  of  a  vast 
number  of  energetic  and  clever  men  scattered  throughout  the 
country,  trained  to  the  business,  and  accomplished  in  all  its 
mysteries.  It  goes  on  without  cessation  or  pause  all  the  time, 
waxing  in  eagerness,  bustle  and  fury  as  the  time  of  choice 
draws  near.  A  successful  candidate  is  scarcely  installed  ere 
the  o;ame  for  the  succession  commences.  Parties  muster  their 
forces,  prepare  their  "  platforms,"  invent  their  "■  cries,"  fabri- 
cate their  fallacies,  appoint  their  agitators  and  indicate  their 
candidates.  As  time  advances  all  the  arts  of  the  demagogue 
are  put  in  requisition.  Itinerant  speakers  fulmine  through 
the  land.  The  press  pours  forth  its  constant  fire  of  argument 
and  appeal,  corruption  does  its  secret  work,  and  when  the  day 
of  trial  comes,  the  ballot-box  manipulator  plies  too  often  his 
skilful  finger,  and  the  rowdy  club  domineers  sometimes  over 
the  hustings.  It  is  an  animating  spectacle,  with  much  of  evil 
in  it  and  much  of  good.  Such  a  contest  elicits  a  vast  amount 
of  able  discussion,  and  through  the  press  increases  the  power 
of  enlightened  opinion.  It  develops  talent  in  evei'y  class  of 
life,  educates  the  people  to  habits  of  thought  on  important 
questions,  and  inspires  them  with  the  sense  of  personal  con- 
sequence and  self-respect,  caused  by  a  participation  in  the  con- 
trol of  great  public  interests. 

It  is  easy  to  imagine  a  community  so  intelligent  and  moral, 
as  to  be  able  to  pass  safely  through  such  oft-repeated  ordeals. 
In  many  parts  of  our  country  this  ideal  state  really  exists,  but 
not  in  all,  not  especially  in  great  cities,  the  centres  of  wealth, 
population  and  power.  The  dangers  of  such  a  contest  are 
likely  to  increase  with  numbers,  with  the  augmenting  bulk  of 
the  interests  of  classes  and  sections,  with  tlie  momentum  of 
the  masses  set  in  motion,  and  with  the  steady  growth  of  igno- 
rance, pauperism  and  crime,  for  these  do  grow  Avith  fearful 
speed  in  the  midst  of  our  fair  and  advancing  civilization.  We 
are  now  thirty  millions,  supposing  we  can  retain  the  South. 


EXECUTIVE    POWER.  261 

In  a  little  while  we  shall  be  fifty  or  sixty  millions,  with  all  the 
enormous  accumulation  and  variety  of  interests  which  our  rapid 
pace  in  prosperity  implies.  An  election  by  universal  suffrage, 
every  four  years,  by  sixty  millions  of  people,  divided  into  par- 
ties by  conflicting  interests  and  principles,  with  their  passions 
sedulously  fanned  into  flame  by  ambitious  leaders,  is  a  spec- 
tacle that  staggers  the  imagination.  It  may  be  among  the 
possibilities  of  the  future,  a  triumph  reserved  for  improved 
culture  and  knowledge,  but  the  past  offers  no  such  example. 

The  election  of  a  President  directly  by  the  people,  was  not 
intended  by  the  Convention.  They  provided  the  shield  of  the 
electoral  colleges  for  the  express  purpose  of  preventing  it.  The 
frustration  of  their  design  has  proved  the  means  of  defeating 
their  intention  in  another  provision  of  the  Constitution,  and 
of  thus  bringing  to  bear  upon  a  Presidential,  and  indeed,  all 
other  elections,  a  tremendous  engine  of  corruption,  which  in- 
creases their  danger  a  hundred  fold.  The  power  of  appoint- 
ment to  all  offices  of  Government  is  conferred  on  the  President, 
subject  to  the  confirmation  of  the  Senate.  The  poAver  also  of 
removing  from  office  without  consulting  the  Senate,  was  soon 
claimed  and  obtained  by  the  Executive,  though  not  conferred 
by  the  Constitution,  and  thus  the  patronage  was  greatly  in- 
creased, and  Congress,  also  in  violation  of  the  Constitution, 
exposed  to  its  corrupting  effects.  Practically  the  President 
exercises  the  whole  patronage  of  the  Government.  The  Con- 
vention intended  to  bestow  this  immense  and  ever  growing 
influence  on  a  President  chosen  by  boards  of  electors,  whom 
they  guarded  in  every  possible  way  from  that  influence.  But 
the  electors  turned  out  to  be  a  nullity.  For  them  the  masses 
of  the  people  have  been  substituted,  and  upon  these  the  whole 
blighting  force  of  the  patronage  can  be  exercised,  and  there 
is  nothing  in  the  Constitution  to  prevent  it. 

The  temptation  has  proved  too  great  to  be  resisted.  The 
patronage  has  been  used  to  control  elections  without  scruple, 
shame,  remorse  or  moderation.  It  has  become  a  settled  prac- 
tice so  to  employ  it,  which  time  and  skill  have  organized  into 
an  elaborate  system  of  corruption,  that  pours  its  poison  not 
only  in  broad  streams  among  the  superior  classes,  but  by  little 


262  THE    TRIAL    OF    THE     CONSTITUTION. 

rivulets  into  every  nook  of  society,  for  a  vote  is  a  vote,  whether 
given  by  the  high  or  the  humble,  and  small  offices  are  the 
prize  of  the  humble.  The  number  of  offices  in  the  gift  of  the 
President  is  not  the  true  measure  of  the  power  of  this  formida- 
ble instrument.  The  President  who  is  in,  uses  it  to  retain  his 
place  for  himself  or  his  party.  The  candidates  use  it  to  stimu- 
late the  efforts  of  their  followers  by  promised  reward.  So 
that  each  office  influences  at  least  two  persons.  To  these 
must  be  added  two  or  three  aspirants  for  each,  and  two  or 
three  of  the  friends  of  each  aspirant.  As  the  Presidential 
election  is  always  the  absorbing  party  question,  it  of  course 
controls  the  patronage  of  the  State  Governments  and  of  all 
municipalities,  and  decides  the  appointment  not  only  of  Cabi- 
net ministers  and  foreign  ambassadors,  but  of  obscure  post- 
masters in  log  shanties  of  the  West,  and  of  policemen  and 
street-cleaners  in  the  cities.  "  To  the  victors  belong  the 
spoils,"  has  become  the  established  maxim  of  party  politics, 
and  it  is  unsparingly  carried  out.  An  immense  force  num- 
bering hundreds  of  thousands,  composed  of  office-holders  and 
office-seekers,  organized,  disciplined  and  trained  for  the  Avork, 
is  thus  enlisted  for  the  express  purpose  of  carrying  the  elec- 
tion of  a  President. 

Such  a  corps  of  mercenaries  cannot  be  the  best  judges  of 
the  talents  and  character  required  for  the  office,  or  very 
scrupulous  about  the  means  they  employ  to  gain  their  ends. 
A  wise  choice  and  a  fair  election  are  not  likely  to  be  the  re- 
sult of  such  a  system.  Clearly  it  is  a  system  not  intended  by 
the  Constitution.  It  has  evil  consequences,  however,  apart 
from  the  injudicious  choice  of  a  President.  It  corrupts  the 
people  by  offering  to  many  thousands  sordid  motives  for  wluit 
should  be  a  moral  act,  by  lowering  the  standard  of  public 
virtue,  and  by  introducing  the  contagious  example  of  dis- 
honesty in  high  station.  Such  things  cannot  be  done  with 
impunity,  and  we  see  the  consequences  in  a  flood  of  corrup- 
tion that  has  inundated  the  Government,  and  which  even  the 
high  emotions  and  patriotic  feelings  called  forth  by  a  noble 
cause  and  a  great  war  cannot  check. 

Another  curious  result  has  grown  out  of  the  failure  of  the 


EXECUTIVE     POWER.  263 

board  of  electors  to  play  their  prescribed  part.  A  clumsy 
substitute  for  them  has  become  necessary.  The  Convention 
intended  the  people  to  elect  a  President,  not  directly  but  in- 
directly, and  they  were  wise  in  this,  for  other  reasons  besides 
those  already  mentioned.  That  a  President,  or  indeed  any 
other  officer,  should  really  be  chosen  by  the  people  of  a  popu- 
lous nation  occupying  a  vast  territory,  is  simply  a  physical 
and  psychological  impossibility.  The}''  cannot  in  the  nature 
of  things  spontaneously  elect  candidates,  each  man  acting  for 
himself.  There  must  be  concert  and  conference.  These 
create  parties,  and  parties  must  have  managers,  leaders, 
organs  who  represent,  guide  and  express  opinion.  Such 
guides  necessarily  nominate  the  candidate  of  a  party,  and  the 
members  of  the  party  must  vote  for  him,  or  for  the  candidate 
of  the  opposite  party,  or  not  vote  at  all,  although  perhaps 
many  would  gladly  choose  some  one  else.  Hence,  therefore, 
a  nomination  by  the  stronger  party  is  the  real  election,  and 
those  who  make  the  nomination  are  the  true  electors. 

Out  of  this  necessity,  nominating  conventions  chosen  by 
the  several  political  parties  have  grown  up,  and  they  do,  in 
fact,  make  our  Presidents.  These  conventions  perform  practi- 
cally the  part  assigned  by  the  Constitution  to  the  electors. 
The  latter  were  indeed  intended  to  appoint  a  President,  and 
the  conventions  choose  candidates  only,  but  as  the  people  must 
vote  for  these  candidates,  or  not  vote  at  all,  so  far  as  freedom 
of  choice  is  concerned,  the  result  is  the  same.  In  all  other 
respects,  however,  it  is  very  different. 

The  nominating  conventions  are  bodies  unknown  to  the  law, 
and  therefore  uncontrolled  by  the  law.  They  are  surrounded 
by  none  of  the  restraints  that  insure  fairness  aitd  intelligence, 
imposed  by  the  Constitution  on  the  electors.  The  conven- 
tions are  irresponsible  bodies,  chosen  by  no  rules  except  party 
rules.  iSTo  law  prescribes  the  numbers  or  qualifications  of  the 
members,  or  defines  their  powers  and  duties,  or  appoints  the 
time  or  place  or  manner  of  their  election.  No  one  neglects  a 
duty  by  omitting  to  vote  for  them.  It  is  not  always  easy  to 
find  out  how  or  where  or  when  to  vote.  To  discover  these 
things,  application  must  be  made  to  the  initiated.     The  con- 


264  THE     TRIAL     OF     THE     CONSTITUTION. 

ventions  meet  when  and  where  they  please.  They  not  only 
nominate  candidates,  but  they  announce  doctrines  and  princi- 
ples on  the  most  momentous  national  questions,  which  they 
call  platforms.  Their  decrees  are  of  no  legal  authority,  but 
are  yet  of  such  force,  that  they  must  be  obeyed  on  pain  of 
virtual  disfranchisement.  They  so  manage  it,  that  a  man 
must  vote  for  their  nominees,  or  not  vote  at  all,  and  vote  for 
all  the  dogmas  of  their  platforms,  or  not  vote  at  all. 

It  is  their  obvious  policy,  indeed,  to  put  forth  principles  that 
are  generally  acceptable  to  their  party  and  candidates  that 
shall  be  available,  that  is  to  say,  popular  and  likely  to  secure 
the  votes  of  their  party.  In  this  rude  way  the  sense  and 
wishes  of  the  people  may  get  expressed  and  executed,  though 
inadequately.  It  constantly  happens  that  some  of  the  prin- 
ciples of  a  "platform"  are  distasteful  to  many,  who  must, 
nevertheless,  swallow  them  or  give  up  those  which  they  do 
approve,  and  more  often,  that  the  men  nominated  are  disliked 
by  numbers  who  must,  nevertheless,  accept  them  or  refuse  to 
support  by  their  votes  their  most  cherished  opinions.  It 
thus  happens  that  the  sanction  of  a  majority  is  given  to  men 
and  measures  which  a  portion  only  of  that  majority  approve. 

It  may  be  said,  indeed,  that  these  defects  are  incident  to 
any  mode  of  ascertaining  the  wishes  of  the  people,  for  proxi- 
mate results  can  be  expected  only,  and  that  the  plan  pre- 
sented in  the  Constitution  would  have  been  liable  to  the  same 
objections.  True,  perhaps  to  the  same,  though  not  to  the 
same  extent.  The  electors  are  voted  for  by  the  whole  people. 
Their  power  and  duties  are  defined  by  the  law  and  their  mem- 
bers amenable  to  the  law.  Cei'tain  classes  of  persons  cannot 
be  chosen.  They  are  not  like  the  nominating  conventions, 
irresponsible  conclaves,  surrounded  by  secrecy  and  mystery, 
managed  by  politicians  with  private  ends  to  serve,  and  thus 
open  to  every  sort  of  intrigue  and  mischievous  influence, 
against  which  the  constitutional  structure  of  the  electors  care- 
fully provided. 

The  plan  in  the  Constitution  failed.  It  fell  flat  before  the 
democratic  element  of  the  country,  because  it  apparently 
witliheld  from  the  people  the  direct  choice  of  the  President. 


EXECUTIVE     POWER.  265 

Another  has  been  substituted  for  it,  because  apparently,  it 
gives  the  election  to  the  people,  though  in  reality  it  does  no 
such  thing.  Had  the  Constitution  imposed  on  the  electoral 
colleges  the  duty  of  choosing  candidates  for  the  Presidency, 
the  plan  would  perhaps  have  been  successful.  There  would 
then  have  been  an  appeal  to  the  people  from  tlicir  decision, 
and  the  electors,  restrained  from  the  abuse  of  power  by  the 
careful  provisions  of  the  law,  would  have  done  what  nominat- 
ing Conventions  now  do,  without  such  restraint. 

We  have  had  some  experience  of  their  operation.  It  can- 
not be  said  that  they  have  elevated  the  tone  of  our  politics  or 
the  character  of  our  public  men  ;  that  they  have  exerted  a 
salutary  influence  on  the  morals  or  manners  of  the  people,  or 
a  wholesome  control  over  the  arts  of  demagogues  and  the 
excesses  of  party  spirit.  Neither  can  we  boast  of  the  candi- 
dates these  President-making  machines  have  nominated  and 
put  in  power.  The  very  names  of  some  of  them  have  become 
offensive,  and  very  few  of  them  have  inspired  confidence  and 
respect.  It  is  not  much  to  the  credit  of  the  nominating 
machine  that  it  ground  out  Mr.  Lincoln,  for  it,  at  the  very 
same  time,  produced  Mr.  Breckinridge.  Mr.  Lincoln  was  an 
accident,  and  the  apparatus  which  turned  up  his  name  had 
before  given  us  Polk,  Pierce  and  Buchanan.  Mr.  Lincoln 
was  not  really  chosen  by  the  people,  not  even  by  those  who 
voted  for  him.  After  having  been  chosen  by  others  he  Avas 
elected  as  the  representative  of  certain  opinions.  Until  he 
was  nominated,  not  one  in  a  thousand  ever  heard  of  him,  or 
after  he  was  nominated  and  elected,  knew  what  manner  of 
man  he  was,  until  he  made  his  inaugural  speech.  Then,  in- 
deed, he  revealed  himself,  much  to  the  relief  of  anxious  multi- 
tudes of  his  supporters.  Before  that,  however,  he  had  been 
illustrious  neither  by  important  public  services  nor  by  the 
display  of  shining  abilities.  Strangely  enough  it  was  for  that 
very  reason  that  he  was  nominated,  whilst  Mr.  Seward,  whose 
name  was  distinguished,  whose  eminent  talents  were  known  to 
the  country  and  who  had  long  been  the  leader,  if  not  the 
creator  of  his  party,  was,  for  those  reasons,  dropped.  A 
capricious  machine,  one  would  say,  this  nominating  Conven- 


266  THE    TRIAL     OF    THE    CONSTITUTION. 

tion,  and  governed  by  mysterious  principles,  known  perhaps 
to  those  who  work  it,  but  to  none  others.  Certainly  it  is  not 
one  made  by  those  who  made  the  Constitution,  or  one  they 
would  willingly  have  adopted.  Surely,  also,  they  never  could 
have  anticipated  its  odd  performances,  if  wo  may  judge  from 
the  words  of  Hamilton,  quoted  above.  How  strangely  they 
sound  to  us  now. 

"  It  will  not  be  too  strong  to  say  that  there  will  be  a  con- 
stant probability  of  seeing  the  Presidency  filled  by  characters 
pre-eminent  for  ability  and  virtue." 

Is  it  possible  to  read  them  without  shame  and  alarm  ?  The 
nominating  conventions  have  not  only  given  weak  and  wicked, 
and  ignorant  and  foolish  Presidents,  but  they  have  also  given 
us  civil  war,  or  rather,  they  gave  us  in  Mr.  Buchanan  a 
President  who  might  have  prevented  a  civil  war,  had  he  pos- 
sessed the  requisite  honesty,  ability  and  courage.  His  official 
power  was  adequate  to  the  purpose.  But  he  was  a  mere 
partisan.  He  owed  his  place  to  the  rebels,  their  chief  men 
were  his  own  trusted  advisers  and  officers  up  to  the  moment  of 
turning  against  the  Government,  and  he  himself  had  diligently 
fostered  the  pernicious  crop  of  false  doctrines  and  arbitrary 
measures,  which,  under  his  auspices,  ripened  to  a  harvest  of 
treason.  The  seeds  of  that  crop  had  been  as  diligently 
planted  and  guanoed  by  his  predecessor  General  Pierce. 
General  Pierce  was  also  a  product  of  the  nominating  machine, 
chosen,  too,  because  he  was  unknown  to  tlie  people. 


It  is  thus  clear  that  the  proper  organization  of  Executive 
power  is  a  problem  yet  to  be  solved.  We  have  abolished  that 
given  to  us  in  the  Constitution,  and  our  substitute  has  failed 
to  furnisli  wortliy  men  for  the  office :  it  has  been  the  prolific 
source  of  corruption ;  it  has  not  saved  us,  when  it  might,  from 
sedition  and  civil  war.  Unless  it  can  l)e  altered  and  improved, 
its  dangerous  tendencies  will  acquire  force  and  impetus  with 
the  increase  of  population,  wealth,  and  national  expenditure. 
If  eighty  millions  a  year  gave  us  the  corruption  of  the  last 


EXECUTIVE     POWER.  267 

adininistration,  Avliat  are  two  hundred  millions  likely  to  cause 
hereafter  ?  Such  a  prize  will  not  render  the  elections  more 
orderly  or  the  councils  of  nominating  conventions  more  pure. 
We  arc  likely  to  have  "military  heroes"  as  aspirants  for  the 
Presidency,  and  large  armies  either  in  the  field  or  recently 
disbanded  ;  and  these  facts  do  not  diminish  the  perils  of  the 
future.  The  past  performances  of  nominating  conventions 
have  not  inspired  the  people  with  much  respect,  and  it  is 
doubtful  if  they  can  be  safely  trusted  hereafter.  Unless  in 
some  Avay  the  Executive  power  can  be  modified,  there  is  rea- 
son to  fear  that  it  may  destroy  the  Government.  It  would  be 
wiser  to  change  it,  by  taking  thought  beforehand,  than  to  have 
it  changed  by  convulsive  events. 

If  "\ve  could  be  taught  by  present  bitter  experience  a 
more  discreet  use  of  the  elective  franchise,  the  present  sys- 
tem could  be  made  to  work  well,  as  indeed  any  system 
will  work  well,  directed  by  an  intelligent  and  virtuous  people. 
Nominating  conventions  might  be  made  useful  and  safe  rep- 
resentatives of  opinion,  if  the  j)eople  would  determine  that 
they  should  be  such.  They  have  in  them  germs  and  pos- 
sibilities of  good,  and  even  now  are  not  wholly  evil.  Why 
cannot  they  be  regulated  by  law,  and  their  mischievous  ten- 
dencies restrained  ?  They  have  become  an  institution  of  for- 
midable power,  and  should  therefore  be  made  amenable  to 
legal  authority.  Perhaps  this  war  may  settle  one  essential 
principle, — that  the  decision  of  the  ballot-box  must  be  sub- 
mitted to.  Perhaps  public  opinion,  instructed  by  past  enormi- 
ties, may  be  able  to  control  the  gross  abuse  of  Executive  pa- 
tronage, and  require  the  nomination,  by  parties,  of  men  of 
ability  and  good  character, — not  of  demagogues.  But  let  us 
avoid  rash  and  sudden  changes.  Let  us  keep  what  we  can  of 
the  Avork  of  the  Convention,  and  bring  it  back  as  near  as  we 
can  to  what  they  intended.  Should  experience  show  that  their 
work  is  unable  to  satisfy  our  new  wants,  let  us  alter  it  with 
reverential  deliberation  and  care,  and  only  where  alteration  is 
necessary  and  when  it  is  necessary. 

Should  our  Union  be  restored,  and  this  country  become  what 
we  hope  and  intend  to  make  it, — a  great  Empire  of  republican 


268  THE     TRIAL     OF     THE     CONSTITUTION. 

liberty, — some  changes  in  the  organic  law  of  tlic  Government 
may  be  required.  If  civilization  means  anything, — if  science 
and  literature,  schools  and  a  free  press,  and  representative  in- 
stitutions have  any  virtue, — these  changes  will  be  made  by 
thought,  and  not  by  force.  The  necessity  Avill  invoke  Ameri- 
can ingenuity  to  invent  an  Executive  machine  that  will  supply 
the  American  demand  for  order,  libert}^  and  national  safety, 
just  as  the  size  of  the  cotton  crop  created  the  cotton  gin,  our 
immense  grain-fields  the  reaper,  our  vast  expanses  of  territory 
the  steamboat,  the  railroad,  and  the  telegraph,  and  the  exi- 
gencies of  the  present  war  'the  Monitor  and  Merrimac,  which 
are  destined  to  work  as  great  marvels  in  naval  warfare  as  the 
former  have  done  in  commerce  and  the  arts.  Liberty,  order, 
security  and  national  power  we  must  have.  Our  Saxon  na- 
ture demands  them  all,  and  demands  them  all  without  Royalty 
or  regal  splendor,  hereditary  rank  or  a  privileged  class.  The 
Enfflish  have  contrived  o-raduallv  to  convert  a  feudal  mon- 
archy  into  a  monarchical  republic,  and  instead  of  a  haughty 
Henry  VIII  or  imperious  Elizabeth,  live  now  under  the  mild 
sway  of  an  amiable  and  domestic  Victoria,  dressed  in  crino- 
line, and  a  good-natured  and  harmless  Palmerston,  decorated 
with  red  tape.  In  like  manner,  the  genius  of  our  kindred 
race,  stimulated  by  the  needs  of  time,  will  surely  be  able  so  to 
mould  and  modify  the  instrument  of  Executive  poAver  fashioned 
for  us  by  our  fathers,  that  it  may  become  strong  enough  for 
our  safety,  yet  not  too  strong  for  our  liberty  ;  serviceable  for 
the  public  good, — not  pliable,  to  serve  private  ends ;  republi- 
can, without  the  license  of  democracy ;  steadfast,  but  not  im- 
movable ;  and,  whilst  responsive  to  the  sober  tliought  and  ad- 
vancing spirit  of  the  age,  firm  to  resist  Utopian  schemes  of 
change  and  the  reckless  passions  of  revolution. 


SLAVER  Y.  2G9 


CHAPTER    IV. 

SLAVERY. 

Another  novelty  put  by  force  of  inexorable  circumstances 
into  our  Constitution  was  slavery,  and  not  slavery  only,  but 
the  African  slave  trade.  The  latter  was  protected  for  twenty 
years,  the  former  forever ;  and  to  render  it  secure  was  inter- 
woven with  the  most  important  functions  of  government,  with 
representation  and  taxation.  When  the  Constitution  was 
formed,  slavery  existed  in  nearly  all  the  States ;  but  it  was  a 
plant  not  suited  to  a  Northern  climate,  and  therefore  it  did 
not  flourish  in  the  North.  It  did  suit  the  South,  because  the 
climate  suited  the  negro.  He  grew  there  with  prolific  luxu- 
riance, as  he  did  in  his  native  Africa.  The  hot  sun  of  the 
South,  which  invigorated  the  black  race,  weakened  the  white, 
indisposed  it  to  labor,  made  it  willing  to  be  labored  for  and 
served.  Having  the  intellectual  superiority  and  force  of  cha- 
racter, and  thence  the  power,  the  white  man  made  the  black 
his  servant.  Out  of  the  toil  of  the  negro,  grew  the  wealth  of 
the  South,  and  out  of  his  natural,  and  therefore  permanent, 
inferiority  to  the  white  man,  coupled  with  his  docility,  grew 
up  the  structure  of  Southern  society.  The  material  prosperity 
of  the  South,  its  manners,  habits,  institutions  and  essential 
conditions  and  characteristics,  were  thus,  then  as  now,  founded 
on  slavery  and  the  negro,  and  on  slavery  because  of  the  negro. 

A  government,  therefore,  for  the  Union  that  did  not  give 
some  sanction  and  protection  to  slavery  was  impossible.  On 
no  other  terms  would  all  of  the  Southern  States  have  entered 
the  Union.  They  were  not  content  even  with  slavery,  but, 
wanting  more  negroes  for  their  extensive  tracts  of  fertility, 
stipulated  for  the  privilege  of  importing  slaves  from  Africa 
for  a  limited  period.     They  Avould  not  be  refused,  and  could 


270  THE     TRIAL     OF     THE     CONSTITUTION. 

not  without  giving  up  the  Union,  so  imjjortant  to  the  safety  * 
and  interest  of  both  North  and  South,  and  the  hopes  so  dear 
to  both  of  founding  a  great  nation.  The  terms  of  the  South 
were  granted,  but  Avith  mucli  reluctance.  It  was  difficult  for 
the  leading  minds  of  the  Convention  to  accept  slavery  as  part 
and  parcel  of  a  Constitution  intended  to  establish  freedom,  or 
to  blot  and  blemish  it  with  a  thing  so  odious  as  the  slave  trade, 
then  beginning  to  attract  the  indignant  notice  of  advancing 
civilization. 

The  slave  trade  regarded  negroes  as  merchandise,  and  so 
did  the  laws  of  the  South ;  but  the  former,  besides  its  atten- 
dant barbarities,  converted  freemen  into  slaves,  whilst  the 
latter  merely  prevented  slaves  from  becoming  freemen.  Hu- 
manity and  the  North  gained  a  qualified  triumph  b}^  the  clause 
in  the  Constitution  providing,  by  implication,  that  the  Go- 
vernment may  (not  shall)  prohibit  the  importation  of  slaves 
after  the  year  1808.  Slavery  was  accepted  per  force,  yet 
what  could  be  done  was  done  to  deprive  it  of  its  most  repulsive 
feature,  and  to  clothe  its  ugly  nakedness  in  the  decent  robes 
of  humanity  and  justice.  Slaves  were  called  "persons"  in 
the  Constitution  wherever  alluded  to,  and  this  word,  both  in 
its  technical  and  popular  meaning,  is  used  in  opposition  to 
things  and  excludes  the  idea  of  property.  The  Convention 
did  not  mean  expressly  to  exclude  that  idea,  for  slaves,  even 
as  property,  are  persons  held  to  service,  but  they  used  lan- 
guage applicable  to  them  both  as  property  and  as  men,  but 
more  peculiarly  and  properly  applicable  to  the  relation  of 
master  and  servant  for  life,  which  is  a  very  diiferent  thing  in 
its  moral  aspect  and  legal  consequences,  in  its  influences  and 
its  results,  from  the  relation  of  owner  and  thing  owned,  which 
is  the  principle  of  the  slave  trade  and  of  Southern  laws. 

With  difficulty  did  our  fathers  yield  to  expediency  and 
bring  tliemselves  to  deface  the  fair  Constitution  they  were 
writing,  l)y  jn-ovisions  to  protect  and  perpetuate  human  bond- 
age. Their  repugnance  is  shawn  by  the  words  they  employed. 
Nowhere  is  slavery  mentioned,  or  property  in  slaves  or  the 
negro  race.  A  stranger  to  the  history  of  the  Constitution 
could  never  gather  from  any  of  its  phrases  that  either  of  these 


SLAVERY.  271 

were  referred  to  or  had  existence  in  the  country.  In  the 
chxuse  esta])lishing  the  ratio  of  taxation  and  representation, 
after  an  enumeration  of  different  classes,  slaves  are  spoken  of 
as  "all  other  persons."  In  the  section  forbidding  the  pro- 
hibition of  the  slave  trade  before  1808,  the  slave  hunt  in 
Africa,  the  warfare  of  savage  tribes  to  supply  the  market,  the 
horrors  of  the  middle  passage  and  the  revolting  scenes  of  the 
slave  auction,  are  all  decently  draped  in  these  words :  "  The 
migration  or  importation  of  such  persons  as  any  of  the  States 
now  existing  shall  think  proper  to  admit."  The  provision  for 
the  return  of  fugitive  slaves,  describes  the  slave  as  a  "person 
held  to  service  or  labor,"  and  his  master  as  "the  party  to 
whom  such  service  or  labor  may  be  due."  No  one  could  tell 
from  the  Constitution  itself  that  the  word  person,  in  either  of 
these  cases,  meant  negroes  or  slaves,  except,  perhaps,  in  the 
first,  where  persons  "bound  to  service"  for  life  are  implied. 
The  fugitive  slave  clause  applies  as  well  to  apprentices,  and 
under  it  possession  of  apprentices  has  been  and  may  be  re- 
covered. 

These  ambiguous  phrases  were  not  used  without  a  motive. 
They  express  the  truth,  then  dawning  on  this  subject,  that  as 
by  the  hiAvs  of  nature  there  can  be  no  such  thing  as  property 
in  man,  so  neither  can  there  be  by  human  laws.  That  the 
relation  of  master  and  slave  is  the  relation  of  a  man  to  a  man, 
not  of  a  man  to  a  thing,  and  therefore  imposes  on  the  master 
duties  and  confers  on  the  slave  rights  Avhich,  though  he  be  a 
negro,  a  white  man  is  bound  to  respect. 

All  the  provisions  in  the  Constitution  in  favor  of  slavery 
and  the  slave  trade,  were  inserted  to  secure  the  adhesion  of 
South  Carolina,  North  Carolina  and  Georgia  to  the  Union, 
and  this  reason  was  expressly  stated  in  the  debates  of  the  Con- 
vention. Aversion  to  slavery  was  openly  avowed,  and  though 
it-was  thought  better  to  admit  it  than  to  exclude  those  States, 
Mr.  Sherman  and  Mr.  Madison  declared  it  was  wrong  to  use 
any  language  in  the  Constitution  which  implied  that  there 
"  could  be  property  in  men."  Most  of  their  eminent  contem- 
poraries disapproved  of  slavery,  lamented  its  existence,  and 
looked  forward  hopefully  to  the  day  when  it  would  disappear. 


272  THE    TRIAL    or    THE     CONSTITUTION. 

Believing  that  it  avouIcI  be  temporary,  and  hoping  that  the 
Constitution  they  were  making  Avould  be  permanent,  they 
•wished  it  to  descend  to  posterity  Avithout  any  visible  stain  to 
show  the  compromise  they  Avere  forced  to  make  Avith  Avhat  they 
felt  to  be  Avrong. 

They  made  a  mistake.  Do  justice  though  the  heavens  fall. 
The  Gods  take  care  of  the  consequences  of  good  deeds.  The 
moral  hiAvs  of  the  universe  are  on  the  side  of  the  right,  and  the 
paths  of  truth,  though  apparently  they  lead  through  morasses 
of  difficulty  and  rocky  passes  of  danger,  conduct  us  surely  in 
the  end  to  the  promised  land  of  safety  and  success.  The  Con- 
vention ought  not  to  have  violated  conscience  for  the  sake  of 
the  Union.  They  ought  not  to  have  given  to  slavery  and  the 
slave  trade,  seeing  that  they  disapproved  of  both,  the  influence 
conferred  b}^  their  sanction.  These  Avere  both  put  into  the 
Constitution,  and  sugar-coated  as  they  might  be  b}^  the  de- 
corous phrases  used  to  describe  them,  their  adoption  implied 
approbation,  and  this  was  not  true  but  false.  They  were  not 
approved,  either  of  them,  but  though  the  debates  say  so,  the 
Constitution  does  not  say  so.  The  Convention  was  employed 
in  a  task  that,  from  its  nature,  can  rarely  be  the  privilege  of 
any  assembly  of  men.  They  Avere  founding  a  nation.  They 
were  building  a  government  to  endure  for  ages,  the  sheltering 
house  and  castle  of  posterity.  Their  hands  Avere  clean,  their 
hearts  Avcre  pure  from  selfish  motives,  but  the  accomplishment 
of  their  great  purpose  Avas  a  temptation  too  great  for  them. 
They  could  not  bear  to  see  it  fail,  and  tlK\y  hoped  to  secure  its 
success  by  rejecting  truth  for  one  of  its  corner-stones  and  sub- 
stituting a  falsehood  in  the  place  of  truth.  They  rejected 
freedom  and  they  put  in  slavery,  and  Avorse  than  slavery,  and 
they  proclaimed  to  the  world  that  they  approved  of  slavery 
and  the  slave  trade,  Avhich  (pardon  me,  ye  venerable  shades,) 
Avas  not  the  truth,  but  a  lie.  And  Avhat  has  been  the  consQ- 
quence  ?  The  )-ejected  stone  has  been  a  stumbling-block  in 
our  path  ever  since,  over  Avhich  Ave  have  at  length  fallen,  and 
the  inserted  stones  have  crund^led  to  poAvder,  so  that  the  edi- 
fice has  settled  on  one  side,  its  Avails  are  cracked  and  rent,  and 


SLAVERY.  273 

the  whole  structure  threatens  to  fall  "in  ruin  with  thunder" 
to  the  ground. 

Wonderful  is  the  action  of  Nemesis  in  human  affairs.  Sla- 
very was  accepted  by  the  Convention  for  the  sake  of  the  Union, 
and  slavery  has  assaulted  the  Union.  Chiefly  to  propitiate 
South  Carolina  and  Georgia  was  the  sacrifice  made,  and  South 
Carolina  led  the  attack,  followed  immediately  by  Georgia. 

Had  the  Convention  sternly  prohibited  the  slave  trade,  and 
refused  to  invest  slavery  with  any  power  or  influence,  leaving 
it  wholly  to  State  laws,  what  evils,  crimes  and  perils  we  should 
have  escaped  !  It  would  have  been  better  to  allow  South  Caro- 
lina, North  Carolina  and  Georgia  to  remain  out  of  the  Union 
forever,  if  they  chose,  though  they  would  have  been  glad  enough 
soon  to  come  into  it.  The  increase  of  the  negro  race  in  the 
South  would  not  have  been  stimulated  by  twenty  years  of  im- 
portation from  Africa,  the  maxims  and  habits  of  that  trade 
ceasing  with  it,  slavery  most  probably  would  have  been  softened 
into  a  really  domestic  institution,  and  slaves  have  been  regarded 
as  men,  not  as  merchandise.  Probably  also  the  Border  States 
would,  ere  this,  have  followed  the  example  of  Northern  eman- 
cipation, to  which  their  climate  and  soil  invite  them,  and  sla- 
very would  never  have  risen  into  an  overgrown,  bloated  power 
in  the  country,  arrogantly  claiming  the  right  to  rule  or  the 
right  to  destroy  it. 

It  must  be  said  in  excuse  for  our  ancestors,  that  though 
against  their  convictions  of  right  they  established  slavery  by 
the  Constitution,  they  expected  confidently  that  slavery  would 
at  some  future  day  be  abolished.  This  opinion  and  hope  were 
by  no  means  confined  to  the  North,  but  were  shared  very  gene- 
rally by  Southern  slave-owners,  who  were  the  leading  men  of 
the  Revolution.  One  of  these  was  Washington.  Their  notions 
on  the  subject,  however,  were  not  very  well  defined  or  founded 
on  adequate  knowledge.  Vague  ideas  of  emancipation,  amal- 
gamation and  colonization  floated  before  their  minds.  The 
science  of  ethnology  had  not  been  born  in  their  day,  by  which 
the  nature  of  the  negro  and  his  true  relation  to  the  white  man 
have  been  revealed.  The  laws  of  race  render  his  equality  with 
the  latter  by  means  of  education  impossible,  and  forbid  amal- 

18 


274  THE    TRIAL     OF    THE     CONSTITUTION. 

gamation  under  penalty  of  degradation  and  degeneracy  for  the 
white.  The  same  laws  destroy  all  hope  of  colonization.  The 
African  has  found  in  the  semi-tropical  climate  of  our  Southern 
States  a  congenial  home,  grows  there  and  multiplies  faster 
than  the  Saxon,  and  his  numbers  speedily  outstripped  the  means 
of  the  Government  to  send  him  away.  The  negro,  moreover, 
has  his  affections.  His  attachment  to  place  and  the  scenes  of 
youth  is  strong.  He  loves  his  native  land,  which  for  those 
born  here,  is  not  Africa.  He  Avould  not  willingly  go  back  to 
Africa.  Force  must  be  used  to  send  him  back,  as  force  was 
originally  used  to  bring  him  here,  so  that  to  export  the  negro 
would  be  almost  as  barbarous  as  it  was  to  import  him.  Our 
ancestors  therefore  did  not  foresee  that  the  negro  race,  for  good 
or  for  evil,  had  seized  upon  a  portion  of  this  country  as  their  in- 
heritance forever.  That  in  seventy  years  they  would  be  four 
millions  strong,  and  would  go  on  to  multiply  with  such  rapidity, 
that  before  the  Constitution  was  a  century  old,  it  might  be- 
come a  question  which  race  is  to  possess  the  South,  the  white 
or  the  black. 

Neither  could  any  experience  at  that  early  day  teach  the 
Convention  the  lesson  we  have  since  learned  of  the  contamina- 
ting influences  of  an  inferior  race.  How  it  must  in  some  way 
be  held  in  subjection,  and  therefore  irresponsible  power,  with 
all  its  baneful  moral  effects,  be  exercised  by  the  superior  race, 
producing  thus  a  rank  growth  of  cruelty,  tyranny,  arrogance, 
pride,  sensuality  and  sloth  !  How  a  population  semi- African 
must  be  semi-barbarous,  and  can  make  but  slow  progress  in 
the  arts,  the  industry,  the  science,  the  wealth  and  the  power 
of  civilization.  Had  our  fatliers  when  anxiously  laboring  for 
the  future,  seen  painted  upon  it  this  fearful  vision,  would  they 
not  have  said  :  "  Let  us  erect  what  barriers  we  can,  not  against 
slavery,  but  against  Africa.  If  this  conquering  negro  race  be 
so  formidable  because  of  its  weakness,  its  unteachable  igno- 
rance, its  tame  docility ;  if  thus  armed  with  power  to  blight 
morals,  to  unnerve  industry,  to  wither  the  intellect,  and  to 
blast,  like  the  sirocco  of  its  native  deserts,  the  fair  promises 
of  culture  and  civilization  ;  if  it  be  irrevocably  planted  in  our 
country,  let  us  at  least  confine  it  in  as  narrow  limits  as  we 


SLAVERY.  275 

can,  and  give  what  we  can  of  our  wide  domain  to  the  Saxon, 
and  thus  to  progress  in  science,  to  freedom  and  Christianity, 
Let  us  import  no  more  negroes.  Let  us  discourage  shivery, 
if  that  will  check  the  growth  of  Africa  in  America,  and  if 
South  and  Xorth  Carolina  and  Georgia  prefer  slaverv  and 
Africa  to  the  Union,  let  them  depart,  and  enjoy  both  in 
peace." 

Another  thing  not  dreamt  of  in  the  philosophy  of  the  Con- 
vention, yet  destined  to  exert  a  powerful  influence  upon  sla- 
very, and  through  it  upon  the  nation,  was  the  cotton  crop.  It 
was  found  that  the  South  contained  the  richest  and  most  ex- 
tensive tracts  of  cotton  land  in  the  world.  Where  cotton 
flourishes,  so  does  the  negro,  but  the  strength  of  the  white 
man  is  weakened  by  the  climate.  The  cotton  gin,  invented 
by  a  New  Englander,  appeared,  as  such  things  do  when 
needed,  and  enabled  the  planters  to  furnish  the  world  with 
an  article  that  soon  increased  the  demands  of  commerce  and 
manufactures  by  supplying  them,  and  became  in  a  few  years 
the  basis  of  an  immense  agriculture  and  an  immense  trade. 
Whilst  the  cotton  gin  enriched  the  South,  it  made  cotton  the 
sole  foundation  of  its  prosperity  and  power.  With  the  value 
of  cotton  rose  the  value  of  negroes.  Slavery  thus  formed  an 
alliance  not  only  with  land  as  before,  but  with  capital,  through- 
out the  civilized  world,  wherever  looms,  spindles  and  ships  ex- 
isted. When  importations  from  Africa  were  forbidden,  the 
price  of  negroes  rose  enormously  in  the  Cotton  States.  To 
supply  their  market,  the  Northern  Slave  States  became 
breeders  of  negroes,  with  large  gains,  much  needed  by  the 
owners  of  worn-out  lands,  especially  in  Virginia.  The  mer- 
cenary element  of  slavery  thus  became  predominant.  Plans 
of  emancipation  that  had  been  proposed  and  discussed  Avere 
immediately  laid  aside,  and  slavery  was  fastened  upon  all 
parts  of  the  South  by  fetters  of  gold.  The  South  without 
cotton  would  be  weak  and  poor.  Cotton  without  negro  labor 
Avould  be  impossible.  The  negro,  therefore,  and  slavery,  the 
one  incapable  of  high  civilization,  and  the  other  inconsistent 
with  it,  became  the  foundation-stones  of  the  edifice  of  Southern 
society. 


276  THE     TRIAL    OF    THE    CONSTITUTION. 

Whilst  slavery  thus  grew  stronger  and  stronger  in  the 
South,  an  enemy  destined  to  cope  Avith  it  and  perhaps  finally 
to  destroy  it,  was  growing  in  the  North.  The  advancement 
of  society  in  the  useful  arts  and  in  wealth,  brings  with  it  the 
increase  and  diffusion  of  knowledge,  and  as  a  consequence, 
higher  views  of  duty,  and  a  finer  sense  of  humanity.  By  this 
process  government  has  been  made  free,  laws  robbed  of  cruelty, 
manners  softened,  and  many  practices  once  universal  have 
come  to  be  regarded  as  barbarisms  of  the  past.  About  the 
time  that  our  Constitution  was  adopted,  the  attention  of  the 
English  Government  and  people  was  directed  by  a  few  earnest 
minds  to  the  enormities  of  the  slave  trade.  It  was  condemned 
as  inconsistent  with  the  intellectual  culture  and  Christian 
morality  of  the  countiy.  These  men  were  denounced  and 
ridiculed  as  fanatics  by  the  intei'csts  connected  with  the  trajBBc, 
by  the  rich  and  noble,  by  the  worldly  and  thoughtless,  just  as 
Abolitionists  are  denounced  and  vilified  here  now.  But  the 
fanatics  were  not  discouraged.  Though  before  their  age,  they 
were  not  so  far  before  it  that  it  could  not  follow  their  lead. 
Their  words  did  not  fall  on  barren  minds  and  stony  hearts, 
and  though  they  fell  among  weeds  and  briers,  the  soil  was 
good,  and  the  divine  seeds  of  justice  and  humanity  took  root, 
and  sprung  up  into  a  crop  that  proved  too  strong  for  the  weeds 
and  briers.  The  result  was,  that  the  slave  trade  was  abolished 
in  England,  and  the  same  causes  also  operating  here,  it  was 
abolislied  by  Congress,  as  soon  as  the  period  appointed  by  the 
Constitution  for  its  continuance  expired. 

It  was  impossible  to  condemn  the  slave  trade,  Avithout  in 
some  degree  condemning  slavery.  If  it  be  wrong  to  make  men 
slaves,  why  is  it  not  wrong  to  keep  them  such  ?  If  it  be  wrong 
to  rob  men  of  themselves,  and  make  them  merchandise,  why 
is  it  not  wrong  to  buy  and  sell  and  use  them  as  merchandise, 
not  for  their  good,  but  for  the  profit  of  the  owner  ?  "Wliatever 
may  be  thought  of  this  argument,  moral  sentiment  and  benevo- 
lent feeling  were  revolted  and  wounded  alike  in  both  cases, 
though  not  in  the  same  degree.  Success  inspired  hope,  and 
led  the  reformers  on  to  liigher  achievement.  The  movement 
had  commenced,  it  was  not  suffered  to  flag,  and  being  un- 


S  L  A  V  E 11 Y.  277 

clieckcd  by  the  hindrances  of  necessity,  interest,  manners  and 
habits,  either  in  England  or  in  onr  Northern  States,  slavery 
ere  long  was  abolished  by  both.  These  triumphs  however  did 
not  satisfy  either  the  opinion  or  the  feeling  that  had  gained 
them,  which  grew  by  indulgence. 

The  power  of  these  forces  was  shown  in  the  attempt  to  pre- 
vent the  extension  of  slavery  in  this  country,  and  they  gained 
a  partial  victory  by  the  Missouri  Compromise.  The  reason- 
ing on  which  that  measure  was  founded  applied  also  to  slavery 
in  the  States.  Unless  slavery  be  an  evil  and  a  wrong,  why 
prohibit  it  anywhere  ?  or  if  it  be  both,  why  permit  it  ?  It  is 
protected  by  the  Constitution,  was  the  answer.  "But,"  said 
the  reformers,  "what  are  Constitutions  compared  to  dut}^? 
Man's  allegiance  is  due  to  something  higher  than  the  Consti- 
tution, which,  if  it  command  injustice,  ought  either  to  be 
altered  or  disobeyed.  At  least,  let  Government  do  what  it 
can  to  clear  the  nation  of  this  iniquity.  Let  it  prevent  the 
spread  of  slavery.  Let  it  rescue  from  its  blighting  curse 
all  the  Territories,  and  the  millions  that  are  to  make  them 
populous.  Let  the  Federal  Capital  be  freed  from  so  foul  a 
scandal." 

The  motives  of  these  pioneers  Avere  honest.  They  were 
governed,  not  by  selfish  interests,  but  by  an  idea,  armed  with 
which  they  ventured  to  attack  selfish  interests.  They,  too, 
declared  that  there  could  not  be  property  in  men.  Subjection 
and  servitude  are,  indeed,  outgrowths  of  the  negro's  nature, 
as  cotton  is  of  the  Southern  soil,  and  are  some,  only,  of  the 
poisonous  African  fruits  brought  here  with  the  negro.  But 
chattel  slavery  is  a  different  thing,  and  is  not  necessary.  The 
zeal  of  the  Abolitionists  was  contagious.  They  gained  hearers 
and  followers.  They  created  a  mass  of  opinion,  which,  as  it 
waxed  in  strength,  attracted  the  notice  of  the  demagogues, 
who  seized  on  it  with  avidity  as  political  capital,  as  they  ap- 
propriated and  used  slavery,  its  interests  and  its  passions, — 
as  they  would  seize  on  a  piece  of  popular  sentiment  in  favor 
of  Mormonism,  Mahometanism,  or  the  worship  of  Jugger- 
naut. Thus  Abolitionism,  commencing  with  the  enthusiasm 
of  a  few,  and  stimulated  by  the  sympathy  of  the  like-minded 


278  THE    TRIAL    OF    THE    CONSTITUTION. 

and  bv  the  perseciition  of  enemies,  throve,  until  at  length  it 
was  marshalled  and  drilled  by  expert  partisans,  and  became  a 
political  power,  though  a  weak  one. 

The  Southern  people  soon  took  the  alarm.  They  saw  that 
the  fated  hour  was  approaching,  for  their  deadliest  foe, — an 
idea, — had  arrived,  and  they  felt  like  rats  in  a  barn  when  it 
is  entered  by  a  ferret.  All  material  interests, — all  worldly 
passions, — they  had  skilfully  arrayed  on  their  side.  The  for- 
bearance of  Europe  was  secured  by  cotton.  The  good  will  of 
the  conservative  interests  of  the  North  was  gained  by  the  inte- 
rests of  manufactures  and  commerce.  The  dangerous  demo- 
cracy, whose  vital  principle  is  so  flatly  contradicted  by  sla- 
very, was  entrapped  by  offering  to  it  the  delights  of  victory, 
and  to  its  leaders  the  bribe  of  office  and  emolument. 

Bnt  selfish  interests  do  not  rule  the  world,  in  the  long  run, 
though  they  may  triumph  for  a  season.  The  anti-slavery  sen- 
timent increased,  and  with  it  advanced  with  rapid  strides  the 
power  of  the  North.  Africa  and  cotton  were  no  match  for 
freedom,  civilization,  and  the  energetic  genius  of  the  Saxon 
race.  In  numbers,  in  all  arts,  in  education,  in  wealth,  in  ma- 
terial resources,  it  soon  became  apparent  that  the  strength  of 
the  country  was  with  the  North,  and  therefore  that  the  North 
must  rule.  The  position  of  the  Southern  people  was  not 
pleasant  or  hopeful.  They  beheld  banded  against  them  the 
opinion  of  the  civilized  world,  and  in  the  ranks  of  that  hostile 
array  they  saw  a  portion  of  their  own  countrymen  determined 
to  destroy  them.  Their  pride  was  insulted,  their  sensibilities 
were  wounded  by  the  incessant  agitation  of  the  subject  of  sla- 
very. As  it  had  become  an  element  of  party  politics.  Congress 
and  the  daily  press  rang  with  it,  whilst  a  constant  warfare 
was  maintained  by  volleys  of  lectures,  speeches,  pamphlets, 
novels  and  periodical  literature,  grave  and  gay,  in  which  sla- 
very was  held  up  to  the  execration  of  mankind  as  an  abomi- 
nation and  a  crime,  and  the  Soutliern  people  described  as 
rapidly  sinking,  because  of  it,  into  a  slough  of  degradation 
and  decay.  Indignation  and  alarm  greatly  exaggerated  both 
the  force  and  the  designs  of  the  anti-slavery  sentiment  of  the 
North,  and  imagination,  artfully  stimulated  by  political  mana- 


I 


SLAVERY.  279 

gers,  painted  the  danger  in  colors  and  proportions  far  beyond 
the  reality. 

Thus  excited,  the  South  became  thoroughly  sectional.  All 
thoughts  and  all  passions  centred  in  slavery,  because  on  it 
their  social  system  and  property  rested,  and  because  it  was 
menaced  with  destruction.  How  to  meet  the  danger,  was  the 
difficult  question.  To  their  vision  only  two  paths  of  safety 
remained  open, — political  equality  with  the  North,  to  be  se- 
cured by  new  Slave  States  carved  out  of  the  National  Terri- 
tory and  out  of  Southern  regions  to  be  gained  by  conquest, 
and,  should  that  fail,  a  separation  from  the  Union. 

For  the  success  of  the  first  they  depended  on  their  old  ally 
the  Democratic  party.  But  they  knew  that  however  staunch 
and  true  the  leaders  of  that  party  might  be,  and  however  well 
drilled  and  obedient  a  large  portion  of  it,  yet  no  political 
party  is  a  constant  quantity.  Democracy  itself  might  become 
infected  Avith  the  poison  of  Abolitionism,  and  its  ranks  be 
thinned  by  desertion.  What  then  can  we  do  ?  Shall  we  sub- 
mit to  be  ruled  by  our  enemies, — to  hold  forever  a  position  of 
inferiority, — to  be  a  mark  for  the  arrows  of  scorn,  hemmed  in 
on  all  sides  by  a  cordon  of  free  Saxon  industry,  and  sure  to 
grow  weaker  and  weaker  every  day,  in  comparison  with  our 
strong  and  arrogant  neighbor  ?  We  cannot  stand  this.  We, 
too,  are  of  Saxon  blood.  W^e  have  broad  lands  and  fertile ; 
we  are  rich  and  powerful ;  our  cotton  is  necessary  to  the  com- 
merce of  Europe,  and  will  secure  for  us  the  alliance  and  pro- 
tection of  its  chief  nations.  It  has  come  to  this.  Because  of 
slavery,  we  must  either  rule  the  nation  or  become  ourselves  a 
nation. 

How  the  Southern  people  endeavored  to  carry  out  this 
scheme  the  history  of  the  recent  past  and  of  the  present 
moment  will  show,  and  to  what  fatal  excesses  they  were  led 
by  the  passions  engendered  by  the  contest.  The  Mexican 
war,  the  Ostend  conference,  the  attempt  to  acquire  Cuba  by 
purchase  or  conquest,  fillibusterism,  the  attacks  upon  Nicara- 
gua, and  the  open  encouragement  and  aid  given  to  the  bucca- 
neers Lopez  and  Walker,  mark  their  efforts  to  acquire  a 
foreign  area  for  slavery.      The  attempt  to  secure  the  national 


280  THE     TRIAL     OF     THE     CONSTITUTION. 

territories  was  made  in  Kansas,  and  the  border  warfare  waged 
against  its  people,  the  territorial  legislature  imposed  on  them 
by  force  of  arms,  the  Lecompton  Constitution  .nought  to  be 
thrust  upon  them  by  force  of  law,  and  the  Dred  Scott  decision, 
will  remain  in  our  annals  proofs  of  the  fanatical  desperation 
of  the  South,  and  of  the  enormities  that  may  be  committed 
with  the  sanction  and  aid  of  a  free  government  in  a  civilized 
age  and  country. 

All  these  efforts  failed.  We  acquired,  indeed,  a  large  tract 
of  land  from  Mexico,  but  it  increased  the  power  of  the  Korth ; 
for  it  is  not,  and  never  can  be,  the  home  of  slavery  and  the 
negro.  The  sentiment  of  the  nation  rose  against  fillibus- 
terism  ;  it  could  not  be  established  as  one  of  our  institutions; 
it  slowly  receded,  with  its  heroes,  from  view,  and  Cuba  and 
Nicaragua  were  left  in  peace.  The  effort  to  secure  Kansas 
was  not  only  unsuccessful,  but  it  overturned  the  Democratic 
party,  and  led  to  the  election  of  Mr.  Lincoln,  a  Northern  man, 
by  the  vote  of  the  North. 

It  was  evident  that  the  South  could  no  longer  govern  the 
country.  The  sceptre  had  passed  from  their  hands,  after  the 
wont  of  sceptres,  to  the  place  where  it  belonged ;  that  is,  to 
superior  power.  The  time  had  therefore  arrived  when,  if 
ever,  the  alternative  part  of  the  Southern  plan  must  be  exe- 
cuted; and  the  Southern  men  were  not  wanting  to  the  occa- 
sion. The  period  was  auspicious.  The  Democratic  party 
"was  in  power ;  the  President,  a  friend  and  agent  of  approved 
fidelity.  The  chief  offices  of  the  Government  were  filled  by 
Southern  men.  Much  might  be  done  during  the  few  months 
of  Mr.  Buchanan's  term,  if  the  time  was  well  employed. 
These  advantages  and  opportunities  were  not  neglected.  The 
Government  was  stripped  of  its  means  of  defence  by  the  offi- 
cial authority  of  men  who,  at  the  time,  were  eating  its  bread, 
and  who  had  sworn  to  obey  it.  In  a  whirlwind  of  passion, 
raised  by  the  arts  of  politicians,  State  after  State  was  precipi- 
tated into  the  measure  of  secession,  with  a  haste  that  proved 
how  much  the  leaders  of  the  movement  feared  the  sober  re- 
flection of  the  people.  Forts,  arsenals,  navy-yards,  mints, 
custom-houses,  were  seized  by  force;  and  when  Mr,  Lincoln 


SLAVERY.  281 

arrived  in  Washington,  he  found  rchellion  mustering  its 
forces,  which  had  been  equipped  with  arms  plundered  from 
the  Government  by  its  own  officers. 

Meanwliile  these  proceedings  had  been  making  their  appeal 
to  tlie  hearts  of  tlie  Northern  people.  They  were  at  first 
incredulous.  It  was  difficult  to  believe  that  the  Aveak  South 
would  venture  to  provoke  a  contest  with  Northern  strength, 
or  that  any  portion  of  this  happy  and  prosperous  country 
would  be  mad  enough  to  at!empt  the  overthrow  of  a  Govern- 
ment which  had  been  the  source  to  all  of  nothing  but  benefits. 
As  however  the  ncAvs  spread  into  the  country,  away  from  the 
great  cities,  among  the  hills  and  valleys,  the  farms  and  vil- 
lages, the  spirit  of  the  North  became  deeply  stirred.  The 
sentiment  of  nationality  was  roused,  and  the  fii"es  of  patriotism 
spread  swiftl}^,  kindling  all  hearts,  and  waiting  only  an  occa- 
sion and  a  signal  to  burst  forth  in  the  majestic  wrath  of  a 
generous  and  insulted  people.  At  length  the  audacity  of  the 
South  culminated  in  the  attack  on  Fort  Sumter;  and  the 
cannon  which  they  then  dared  to  fire  on  the  symbol  of  our 
country  and  of  liberty,  like  the  rifle  volleys  at  Bunker  Hill, 
struck  a  solemn  and  memorable  hour  on  the  great  bell  of 
time.  As  the  latter  proclaimed  the  birth  of  a  great  nation, 
so  the  rebel  guns  sounded  the  era  of  its  regeneration. 

How  the  President  proved  equal  to  the  emergency ;  in 
what  firm,  grave,  and  temperate  language  he  appealed  for 
support  to  the  people,  and  how  gloriously  they  rallied  round 
their  flag,  need  not  be  told  here.  Neither  is  it  my  province 
to  relate  the  incidents  of  the  war.  How,  by  miracles  of 
energy  and  untaught  ability,  an  army  and  navy  were  impro- 
vised and  equipped  out  of  nothing;  raw  recruits  suddenly 
converted  into  ranks  of  soldiers,  and  able  generals  brought 
forth  from  the  peaceful  pursuits  of  business  ;  or  how,  after  a 
few  checks  and  reverses,  the  power  of  the  North  has  prevailed, 
and  the  rebels  are  now  retreating  before  its  victorious  ban- 
ners.* Whether  victory  will  continue,  or  can  restore  the 
Union,  cannot  be  foretold.     This  much,  however,  is  certain; 

*  May  9th. 


282  THE    TRIAL     OF    THE    CONSTITUTION. 

all  the  calculations  of  the  Southern  politicians  who  plotted 
this  rehellion,  have  so  far  proved  false.  They  could  not 
secure  the  adhesion  of  the  Border  States,  nor  the  alliance  and 
aid  of  Europe.  They  have  revealed  the  gigantic  bulk  and 
force  of  the  Northern  power  which  they  ventured  to  provoke. 
They  have  renovated  and  united  the  national  spirit  of  the 
Northern  people.  They  have  brought  defeat  and  the  desola- 
tion of  war  upon  their  own  section ;  and  that  section  must 
now  take,  either  in  or  out  of  the  Union,  a  position  far  less 
powerful  than  it  had  before. 

The  Southern  people  were  guilty  of  fatal  mistakes  from  the 
beginning.  They  greatly  exaggerated  their  own  importance 
and  2)ower,  and  did  not  appreciate  at  all  the  power  of  the 
North,  arising,  not  alone  from  numbers  and  vast  material 
wealth,  but  from  the  intellectual  and  moral  forces  generated 
by  freedom,  universal  comfort,  and  education.  As  little  did 
Southern  men  understand  the  true  state  of  opinion  in  the 
North,  which,  though  averse  to  slavery  and  to  its  extension, 
was  also  willing  and  determined  to  yield  it  all  its  constitu- 
tional rights.  Exasperated  by  the  torrents  of  argument  and 
invective  poured  on  them  by  the  Abolitionists,  they  either 
could  not  or  would  not  see,  that  these  formed  a  small  sect 
and  a  small  party,  and  that  slavery,  guaranteed  by  the  Con- 
stitution, was  also  amply  protected  by  the  patriotism,  the 
good-will,  and  the  interests  of  the  Northern  people,  who  loved 
and  valued  the  Union,  and  for  its  sake  were  willing  to  tolerate 
and  maintain  slavery.  Neither  could  they  see  that  these  were 
the  only  defences  that  slavery  had  in  the  world.  Moreover, 
slavery  had  become  the  chief  element  of  power  to  a  great  and 
generally  victorious  political  party,  who  were  determined  to 
defend  it,  riglit  or  wrong,  at  all  hazards.  So  far,  therefore, 
from  being  in  danger, — at  least  immediate  danger, — from 
Northern  opinion,  Northern  liberty,  free  thought,  free  speech, 
and  a  free  press,  were  menaced  by  slavery.  Fortunately, 
however,  the  Southern  politicians  saved  us  from  tliis  peril. 
No  ingenuity  could  have  devised  a  plan  better  fitted  than  that 
which  they  adopted  to  make  the  North  abhor  slavery,  and  the 
arrogant  dictation  of  the  South.     They  have  associated  both 


I 


SLAVERY.  283 

forever  Avith  ideas  of  cruelty  and  tyranny,  perfidy  and  trea- 
son. Kansas  and  Sumter  will  henceforth  signify  deliverance 
from  these. 


We  have  seen  that  slavery  was  put  by  force  of  circumstances 
into  the  Constitution,  and  that  it  has  been  the  cause  of  a  bold 
attempt  to  overthrow  the  Constitution.  On  this  point,  also, 
the  Constitution  is  therefore  on  its  trial.  Are  Union,  the 
Constitution  and  slavery,  things  that  can  be  combined  into  a 
harmonious  whole,  such  as  we  can  call  a  country  and  a  Go- 
vernment ?  Should  our  victorious  flag  again  fly  over  every 
part  of  the  South ;  should  the  armies  of  rebellion  be  dispersed 
and  the  mock  government  of  the  "  Confederate  States"  be 
convicted  of  being  a  lie  and  a  sham,  what  shall  we  say  about 
slavery  to  the  deluded,  devastated  Southern  people,  when  we 
invite  them  to  return  to  their  allegiance,  when  we  tell  them 
the  Union  has  never  been  broken  ? 

The  question  is  difficult,  and  different  views  of  it  have 
powerful  advocates  in  and  out  of  Congress.  It  is  said  by 
some  that,  as  slavery  is  the  cause  of  the  war,  if  we  bring  back 
slavery  with  the  Southern  States  we  shall  bring  back  all  the 
old  issues,  and  with  them  strife,  sedition,  perhaps  another 
war.  These  men,  therefore,  propose  a  sweeping  act  of  eman- 
cipation as  a  war  measure  whilst  we  have  the  opportunity, 
since  when  the  war  is  over,  if  the  South  returns,  slavery  will 
be  protected  by  the  Constitution.  Let  us  now,  they  say,  do 
justice  to  the  negro,  gain  for  our  country  the  respect  of  the 
world,  and  destroy  forever  this  hydra,  the  cause  to  us  of  so 
many  calamities.     Let  us  not  scotch  the  snake  but  kill  it. 

To  this  policy,  however,  although  justifiable  by  the  laws  of 
war,  there  are  objections.  It  would  be  difficult,  if  not  impos- 
sible, of  execution,  except  by  means  of  an  armed  force  through- 
out the  South.  A  mere  military  proclamation  of  liberty  to 
the  negroes  the  Southern  people  would,  of  course,  disregard, 
and  it   could  have  no  eff'ect  after  peace,  unless,  indeed,  its 


284  THE     TRIAL     OF     THE     CONSTITUTION. 

moral  effect  on  the  slaves  should  destroy  slavery,  or  unless  its 
destruction  should  be  made  one  of  the  conditions  of  peace. 
As  a  war  measure  it  would,  perhaps,  lead  to  the  horrors  of  a 
servile  revolt,  a  design  not  to  be  imputed  to  the  advocates  of 
the  measure,  but  could  have  no  other  effect  to  weaken  the 
enemy  than  the  course  already  pursued  by  the  President,  of 
receiving  and  employing  negroes  wherever  our  armies  move. 
As  a  peace  measure,  could  it  be  executed,  it  would  break  up 
the  fabric  of  Southern  society,  change  suddenly  habits  long 
formed,  deprive  the  negroes,  without  previous  preparation,  of 
the  protecting  care  which,  with  all  its  evils,  slavery  does 
afford,  deluge  the  South  Avith  a  flood  of  ignorant,  idle,  thrift- 
less pauperism,  obliterate  a  vast  amount  of  property,  and  in- 
volve in  indiscriminate  ruin  Union  men  and  rebels,  the  deluded 
victims  of  treason  and  traitors,  the  innocent  and  the  guilty. 
To  the  negroes  such  a  step  might  prove  a  calamity.  Sudden 
emancipation,  under  any  circumstances,  is  far  from  desirable 
for  them,  but  sudden  emancipation,  as  a  hostile  act,  by  ene- 
mies in  arms  against  their  masters,  thus  making  the  freedom 
of  the  negro  the  badge  of  his  master's  subjugation,  would  con- 
vert that  master  into  a  foe.  Neither  the  two  races,  nor  North 
and  South,  could  live  very  harmoniously  together  after  such  a 
proceeding.  We  do  not  need  it,  because  we  are  strong  enough 
to  conquer  the  rebellion  Avithout  its  aid.  It  would,  moreover, 
be  a  breach  of  faith  to  the  Union  men  in  the  South.  The 
Government  has  proclaimed  that  it  makes  war  only  against 
the  rebellion,  and  has  promised  to  the  people  protection  in  all 
their  rights  and  their  former  position  in  the  Union.* 

Another  party,  possessing  much  influence,  defeated  but  not 
overcome,  anxious  to  regain  lost  power,  and  eagerly  watching 
for  that  purpose  the  course  of  events  and  the  tides  of  opinion, 
goes  to  the  other  extreme.  According  to  this  party,  the  re- 
bellion was  a  mistake  on  the  part  of  the  Southern  people,  into 

*  Tliis  was  written  in  May.  On  the  22cl  of  the  following  September  the 
Proclamation  of  the  President  was  issued,  declaring  freedom  to  all  slaves  in 
States  in  rebellion  on  the  1st  of  Januar}'.  This  Proclamation  is  of  a  differ- 
ent character  from  the  measure  supposed  in  the  text.     See  Appendix. 


SLAVERY.  285 

whicli  they  were  driven  by  the  unjust  invasion  of  their  rights. 
They  were  entitled  to  the  territories ;  they  were  entitled  to 
the  rigid  execution  of  the  fugitive  slave  law,  so  revolting  in 
its  details  and  so  insulting  to  Northern  sentiment.  Foreign 
conquest,  too,  of  the  fertile  regions  around  the  Gulf  of  Mexico, 
if  it  increased  the  area  of  slavery,  would  increase  also  the 
national  po^vor,  and  is,  therefore,  a  wise  policy  for  the  Na- 
tional Government.  The  odious  character  of  slavery,  and  the 
evils  to  be  entailed  on  distant  generations  by  spreading  the 
negro  race  over  vast  regions  that  might  be  secured  to  a  higher 
civilization,  this  party  wholly  disregards.  The  implied  sanc- 
tion and  approbation  which  would  thus  be  given  to  slavery 
and  to  the  principle  that  men  can  be  property,  it  also  disre- 
gards. Slaves  and  cotton,  in  its  view,  are  alike  property,  and 
form  a  large  portion  of  the  wealth  of  the  country,  and  as  such 
should  be  protected  and  fostered  by  the  Government.  They 
form  the  whole  wealth  of  the  South  ;  and  when  the  Southern 
people  saw  them  endangered  by  tlie  election  of  a  Republican 
President,  they  were  justly  alarmed  and  indignant,  and  if,  in 
making  war  upon  the  Government  for  the  purpose  of  destroy- 
ing the  nation,  they  Avere  guilt}^  of  excess,  it  was  folly,  impru- 
dence and  error,  rather  than  crime,  for  which  they  may  well 
be  forgiven  by  us,  their  countrymen  and  brothers. 

Those  who  reason  thus  are  a  portion  of  the  Democratic 
party,  the  ancient  and  trusty  allies  of  the  South.  When  the 
"war  broke  out  they  gave  to  their  old  friends  the  influence  of 
their  entire  sympathy  and  of  such  public  opinion  as  they  could 
create  in  the  North,  to  favor  the  cause  of  the  rebellion.  They 
placed  also  in  the  difficult  path  of  the  Government  whatever 
obstructions  they  could,  short  of  open  physical  resistance. 
They  poured  forth  argument,  ridicule  and  vituperation  upon 
all  the  men  and  measures  of  the  administration ;  they  magni- 
fied Southern  victories  and  Northern  reverses ;  they  dis- 
paraged our  generals,  our  army,  our  successes,  and  constantly 
predicted  failure  and  disaster  even  in  the  midst  of  our  tri- 
umphs.    They  advocated  the  cause  of  secession  and  denounced 

the  war  as  a  mere  Abolition  war,  and  a  wicked  attempt  to 

I 


286  THE     TRIAL     OF     THE     CONSTITUTION. 

subjugate  a  brave  people  fighting  for  tlieir  liomes  and  their 
rights. 

These  discordant  voices,  liowever,  were  soon  lost  in  the 
grand  symphony  of  patriotism,  which  SAvelled  from  all  classes 
and  all  parties  of  the  Northern  people.  The  masses  of  the 
Democrats  were  caught  by  this  music,  and  marched  to  its  in- 
spiring strains  in  the  armies  of  the  Union.  The-  uprising  of 
the  people,  caused  by  the  fall  of  Sumter,  dissipated  the  hope 
that  to  avoid  war,  concessions  and  compromises  would  be  offered 
by  the  Government  to  rebels  in  arms  against  its  authority.  It 
was  evident  that  a  Northern  party  to  oppose  coercion,  either 
by  force  or  opinion,  could  not  be  formed.  After  an  anxious 
period  of  suspense,  events  soon  proved  that  the  North,  united 
in  purpose  and  feeling,  must  be  victorious  in  the  end.  The 
rebels  could  not  take  Washington,  could  not  invade  the  North- 
ern States,  could  not  therefore  dictate  terms  to  the  conquered 
Government,  and  with  the  aid  of  the  Democratic  party,  re- 
construct the  Union  on  its  old  basis  of  Southern  supremacy. 
Nevertheless  this  object  has  not  been  abandoned.  As  the  pro- 
gress of  the  war  encourages  hopes  of  reunion,  the  terms  on 
which  it  can  be  effected  demand  attention.  The  Southern 
States  must  always  be  a  powerful  ally,  and  slavery  an  element 
of  strength  in  political  contests.  The  Democratic  party,  to 
whom  they  belonged  before,  is  determined  if  possible  to  secure 
them  again.  And  how  ?  By  yielding  as  before  to  all  their 
demands.  The  movement  has  commenced.  The  leaders  have 
sat  in  solemn  conclave,  a  platform  has  been  prepared  and  a 
cry  invented,  rather  a  taking  one  it  must  be  confessed  :  "  The 
Union  as  it  was,  and  the  Constitution  as  it  is." 

The  popular  sentiment  having  been  pronounced  so  decidedly 
in  favor  of  Avar  for  the  Union,  we  are  told  at  length  by  these 
tacticians  that  the  Union  is  indispensable  to  the  prosperity  of 
the  nation.  This  had  been  said  before,  but  it  has  been  coupled 
now  with  a  doctrine  referred  to  in  the  second  chapter.  If  any 
of  the  States  succeed  in  establishing  their  independence,  the 
legal  tie  which  connects  the  others  would  be  by  that  act  sun- 
dered, and  all  be  brought  back  to  the  condition  in  Avhich  they 
were  before  the  Constitution  was  made.     Of  course  then,  this 


SLAVERY.  287 

indispensable  Union  will  cease  to  be  in  their  eyes  even  desira- 
ble. Reason  and  thought,  and  the  habit  of  consultation  and 
combination,  so  peculiarly  the  results  of  American  education, 
would  at  once  lose  all  influence  over  the  States  or  the  people. 
The  strong  would  immediately  begin  to  prey  on  the  weak,  and 
the  result  would  be  war  raging  throughout  the  land,  until  after 
many  years  of  confusion  and  misery,  this  once  happy  Republic 
would  be  divided,  as  Europe  is,  into  separate  nations,  each 
watching  the  other  Avith  jealous  eyes,  each  armed,  and  each 
therefore  an  absolute  monarchy.  To  avoid  such  a  destiny,  the 
one  thing  necessary  is  Union.  But  how  can  the  Union  be  re- 
stored ?  Not  surely  by  war.  It  is  impossible  to  conquer  the 
Southern  'peoiile.  They  are  brave  and  high-spirited.  They 
have  a  vast  territory.  They  have  great  resources  in  their  fer- 
tile-soil and  the  labor  of  their  slaves.  You  may  defeat  their 
armies,  occupy  their  sea-ports,  even  overrun  the  interior  spaces 
of  their  country,  but  a  people  determined  on  resistance  can 
never  be  permanently  subjugated,  and  the  Southern  people  will 
resist  to  the  last  extremity  rather  than  submit  to  the  rule  of 
the  Black  ReiJuhlicans. 

Since  war  then  cannot  save  us  from  the  disasters  of  disunion, 
what  can  ?  Conciliation.  But  it  might  be  said,  what  offers 
of  conciliation  can  the  Government  make  that  it  has  not  al- 
ready made  ?  Has  it  not  been  proclaimed  in  every  possible 
official  form,  that  this  war  is  waged  not  against  the  people,  but 
against  the  rebellion  ?  Do  not  our  generals,  wherever  they 
go,  declare  their  purpose  is  not  to  destroy,  but  to  protect  ?  Do 
not  they  promise  safety  and  security  to  all  rights,  and  to  every 
man,  not  in  arms  against  the  Government  ?  Do  they  not  in- 
vite the  people  back  to  the  old  flag,  and  to  all  the  blessings 
they  enjoyed  under  it  ?  "  Ah  !"  say  the  Democratic  leaders, 
"  that  is  not  enough.  The  Southern  people  know  their  friends. 
They  will  not  accept  conciliation  from  xibolitionists,  but  they 
would  accept  it  from  us."  "  And  what  terms  would  you  offer  ? 
Surely  you  would  not  propose  that  the  Government  should  so 
far  forget  its  dignity  and  authority  as  to  sue  for  peace,  seek 
negotiations  and  make  concessions  to  rebels  with  arms  in  their 
hands!     What  is  your  plan?"     "We  will  tell  you,"  is  the 


288  THE    TRIAL     OF    THE     CONSTITUTION. 

reply,  "  when  we  SAveep  the  country  at  the  next  election.  Let 
the  Confederate  States  hold  out  till  then,  and  the  Democratic 
party  will  save  the  nation  and  restore  'the  Union  as  it  was, 
and  the  Constitution  as  it  is,'  for  we  only  have  the  power." 
It  is  obvious  enough,  that  the  Union  here  meant  is  the  Union 
between  the  South  and  the  Democratic  party,  and  the  Consti- 
tution to  be  preserved  is  one  that  covers  all  the  extravngant 
claims  of  the  South  in  favor  of  slavery,  which  claims  caused 
the  war. 

There  is  hope  that  these  extreme  opinions  and  schemes  will 
not  prevail.  The  Northern  people  are  intelligent  and  moral. 
Nowhere  on  earth  is  education  so  generally  diffused,  nowhere 
else  is  the  ability  to  think  and  act  on  public  affairs  so  universal. 
Their  minds  are  now  thoroughly  roused,  their  best  emotions 
excited  by  the  great  events  of  the  hour  and  the  great  interests 
at  stake.  They  are  willing  to  forget  the  divisions  of  party, 
even  the  just  resentment  caused  by  rebellion  and  treason.  In 
the  midst  of  war,  the  Northern  people  areas  yet  full  of  kind 
feelings  to  the  South,  and  ready  at  any  moment  to  forgive  the 
past.  In  the  noble  display  of  sentiment  and  mental  power 
they  have  made  and  are  making,  in  this  their  day  of  trial  and 
danger,  they  have  done  more  to  vindicate  the  cause  of  free 
government  than  by  all  their  previous  prosperity.  They  have 
determined  to  save  their  country  and  to  keep  it,  if  they  can, 
unmutilated  and  unbroken  for  themselves  and  their  posterity 
forever.  They  cannot  be  led  by  fanaticism  to  oppress  and 
outrage  one  portion  of  it,  or  by  party  spirit  or  party  manage- 
ment, however  adroit,  to  succumb  to  the  arrogant  dictation  of 
that  portion.  They  are  anxious  that  slavery  be  so  managed 
as  to  do  justice  to  the  South,  and  at  the  same  time  satisfy  the 
moral  sentiment  of  the  Northern  people,  and  any  plan  adopted 
by  the  Government  which  may  combine  both  these  conditions 
■will  be  sanctioned  by  the  practical  good  sense  of  the  country. 

Our  Government  is  now  placed  in  a  position  similar  to  that 
occupied  by  tlie  Convention  that  made  the  Constitution.  The 
task  of  the  latter  was  to  strengthen  and  consolidate  a  Union ; 
that  of  the  former  is  to  restore  one,  and  how  to  deal  with 
slavery  was  and  is  the  Sphinx's  riddle,  presented  to  each,  to 


SLAVERY.  289 

be  solved  on  pain  of  death.  The  Convention  solved  it  by 
giving  their  sanction  both  to  slavery  and  tlie  slave  trade. 
They  disapproved  of  both,  and  they  accepted  both  wholly  as 
a  necessity.  But  they  did  not  say  so  in  the  Constitution,  and 
that,  not  their  debates,  has  been,  and  must  be,  regarded  by 
posterity  as  the  expression  of  their  opinion.  Neither  did  they 
understand  the  nature  of  the  negro.  For  want,  therefore,  of 
candor  and  of  knowledge  they  failed  to  read  the  riddle  ai-ight, 
arid  as  a  consequence,  the  teeth  and  claws  of  the  inexorable 
Spliinx  have  been  rending  and  lacerating  their  work  ever 
since,  and  at  length  the  vengeful  monster  has  torn  it  to  pieces. 
We  now  go  forward  to  its  rescue.  "  Read  me  my  riddle, 
then,"  the  Sphinx  cries  to  us,  "and  read  it  aright,  or  I  will 
destroy  you  utterly."  We  must  try  to  obey.  It  is  our  fate. 
Four  millions  of  negroes  in  their  African  fashion,  with  mute 
eloquence  and  humble  uncouth  bendings,  are  speaking  to  us, 
all  unconsciously,  words  of  command.  "  Find  out  our  true 
position,"  they  say.  "  We  cannot  find  it  out  for  ourselves. 
We  knew  what  it  was  in  Africa  well  enough.  We  Avere  put 
there  by  our  Creator  and  he  taught  us.  But  you  brought  us 
here  and  placed  us  in  the  midst  of  your  incomprehensible 
civilization  and  alongside  of  your  people  who  are  to  us  as 
gods.  We  cannot  reach  up  to  the  one  or  keep  pace  with 
the  other.  But  this  much  we  do  know :  we  are  entitled  to 
the  eternal  and  universal  justice,  which  is  born  of  heaven  and 
will  live  when  earth  has  passed  away.  You  are  wise.  Place 
us  Avhere  we  ought  to  be,  or  we  will  conquer  you  by  our 
degradation,  rivet  our  chains  around  your  necks,  and  over- 
whelm you  by  our  dusky  multitudes." 

This  is  the  problem  offered  to  us  by  the  war.  Let  us  ap- 
proach it  in  the  spirit  of  truth  and  with  the  advantages  of  ex- 
perience. The  subject  has  three  essential  elements  :  the  needs 
of  the  negro,  of  the  Southern  people  and  of  the  Northern 
people.    Any  plan  that  does  not  satisfy  all  of  these  must  fail. 

It  rightfully  belongs  to  us  to  determine  the  position  of  the 
negro,  not  to  him.  Our  race  is  permanently  different  from 
his,  and  permanently  superior  in  all  mental,  moral  and  physi- 

19 


290  THE     TRIAL     OF     THE     COXSTITUTIOX. 

cal  qualities.  We  must  therefore  govern  him,  because  it  is 
the  attribute  of  superior  power  to  govern.  From  the  earliest 
antiquity  his  intellectual  force  and  capacity  have  never  varied, 
and  he  has  always  been  governed  by  the  white  race  wherever 
he  has  been  its  companion.  We  cannot  even  consult  him 
about  the  position  he  ought  to  occupy  in  our  social  system. 
It  would  be  absurd  to  do  so,  for  he  could  give  no  intelligible 
answer.  Therefore,  he  never  has  been  consulted.  The  Abo- 
litionists themselves  are  now  debating  the  question,  what  shall 
we  do  with  the  negro?  Shall  we  set  him  free?  Shall  we 
keep  him  in  slavery  ?  Shall  we  send  him  back  to  Africa  or 
to  some  island  in  a  Southern  sea  and  so  get  rid  of  him  and 
slavery  together  ?  No  one  ever  thinks  of  discussing  these 
questions  with  the  negro,  who  is  the  party  most  deeply  inte- 
rested. It  would  be  ridiculous  to  submit  them  to  him  and  to 
put  a  ballot-box  into  his  hands  that  he  might  decide  them. 
No  opinion  of  his  would  influence  ours  in  the  slightest  degree. 
He  has  never  expressed  an  opinion  because  he  cannot  have 
any.  He  is  passive  because  the  whole  subject  is  beyond  his 
range  of  thought.  Not  at  his  instance  has  the  slavery  ques- 
tion been  mooted  and  agitated.  He  has  never  asked  for 
liberty.  It  is  doubtful  whether,  when  well  treated,  he  even 
really  desires  it  with  the  rational  desire  of  one  who  can  ap- 
preciate its  advantages,  enjoyments,  duties  and  responsi- 
bilities. A  child  likes  freedom  and  is  glad  when  the  hour 
comes  for  release  from  school.  Ignorant  and  foolish  people 
like  freedom  from  all  restraint  and  the  privilege  of  doing  as 
they  please.  But  freedom  in  any  manly  and  proper  sense, 
freedom  coupled  with  toil,  care  and  moral  obligation,  the 
great  mass  of  the  Southern  negroes  do  not  desire,  because 
they  cannot  comprehend  it.  Nevertheless,  some  of  them  can 
comprehend  it,  and  the  race,  though  incapable  of  civilization, 
in  our  sense  of  the  word,  of  advancing  with  us  in  industry, 
knowledge  and  the  arts,  is  able,  under  our  guidance,  to  reach 
the  rank  of  a  free  working  class  and  enjoy  its  privileges. 
This  ability  cannot  be  conferred  upon  the  negro  by  law, 
though  restraints  upon  it  may  be  removed  by  law.  It  must 
be  the  result  of  circumstances  and  education. 


SLAVERY.  291 

If  we  have  thus  by  natural  law  the  right  to  govern  the 
negro,  the  same  law  imposes  on  us  the  duty  to  govern  him  for 
his  own  good,  not  exclusively  for  ours.  Four  millions  of 
negroes  represent  a  vast  sum  of  human  happiness  or  misery 
which  we  have  the  power  to  influence.  Wc  are  bound  to 
exercise  that  power  with  justice  and  humanity,  under  penal- 
ties. There  is  no  such  thing  as  power  disunited  from  duty. 
If  I  have  control  of  another.  I  am  responsible  for  his  well 
being.  This  is  the  universal  law  of  justice,  and  if  we  reject 
that  stone  from  our  edifice  it  cannot  stand.* 

The  question  then  is,  what  is  the  best  and  happiest  position 
for  the  negro,  living,  as  he  does,  alongside  of  the  white  race 
in  the  Southern  States,  constituting,  as  he  does  in  some  of 
them,  one-half  or  more  of  the  population  ?  As  he  is,  by  the 
laws  of  nature,  inferior  to  the  Saxon,  no  human  laws  can 
make  him  equal.  The  princij)les  of  democracy  do  not  apply 
to  the  negro.  He  is  not  capable  of  thinking  at  all  on  the  po- 
litical questions  or  the  great  interests  of  a  civilized  commu- 
nity, and  therefore  he  is. incapable  of  acting.  Evidently  the 
ballot-box  is  not  an  instrument  that  he  can  use  with  benefit  to 
himself  and  others.  It  is  useless,  however,  to  discuss  the 
question  of  granting  political  power  to  the  negro  in  the  South, 
as  no  party  of  any  influence  in  the  country  advocates  so  wild 
a  scheme. 

If  he  is  not  fitted  for  the  highest  place  in  the  social  scale,  is 
the  lowest, — that  of  a  chattel  slave, — one  in  which  his  faculties 
will  find  their  most  healthy  development,  and  his  capacity  for 
enjoyment  be  most  fully  satisfied  ?  Is  he  not  a  human  being? 
Has  he  not  spiritual  life  in  him  ?  Has  he  not  affections  which 
demand  their  objects,  a  mind  capable  of  improvement,  moral 
sentiment  that  may  be  cultivated,  purified,  and  elevated? 
Can  he  not,  in  his  humble  way,  be  made  to  appreciate  Divine 
truth, — be  taught  that  even  he  is  an  object  of  God's  infinite 
care,  justice,  and  love ;  and  that  for  him,  too,  however  lowly 

*  On  this  point  I  refer  with  pleasure  to  an  eloquent  and  philosophical 
little  book,  entitled  "  The  Rejected  Stone,  or  Insurrection  against  a  Resur- 
rection." 


292  THE     TRIAL     OF     THE     CONSTITUTION. 

here,  dawn  the  hopes  of  a  life  hereafter  ?  If  this  be  true,  then 
he  is  a  man  and  not  a  thing, — a  j^iece  of  our  common  human- 
ity and  not  a  piece  of  merchandise  ;  and  to  class  him  among 
things  and  to  treat  him  as  merchandise  is  to  place  him  in  a 
false  position,  where,  however  well  he  may  be  fed  and  clothed, 
the  needs  of  his  moral  and  intellectual  nature  cannot  be  satis- 
fied. As  man  the  negro  has  rights,  as  property  he  has  none, — 
no  right  to  the  proceeds  of  his  toil,  to  wife  or  child,  to  choice 
of  occupation  or  abode, — no  right  of  self-defence,  no  right  to 
himself.  As  property  he  has  no  claim  on  the  justice  or  huma- 
nity of  his  master,  and  exists  only  as  an  instrument  of  gain. 
The  principle  that  a  slave  is  property  binds  fetters  on  his  soul, 
shuts  out  the  heavenly  lights,  and  bars  against  him  the  path 
of  moral  and  mental  improvement. 

If  the  negro's  nature  be  too  low  for  equality  with  the  white 
race,  and  for  the  enjoyment  of  political  liberty  or  power  over 
the  State,  it  is  too  high,  seeing  that  he  is  human,  for  the  con- 
dition of  a  cluittel.  Wliat,  then,  is  his  proper  position  in  the 
social  scale  ?  His  bodily  strength  and  mental  weakness  fit 
him  to  be  a  laborer  in  those  pursuits  which  require  bodily 
rather  than  mental  force.  He  cannot  think,  but  he  can  work. 
He  cannot  become  a  skilful  artisan  or  build  ships  and  cities,  or 
make  or  use  machinery,  or  conduct  commerce,  or  write  books, 
or  make  laws,  but  he  can  dig  and  plough, — can  be  a  hewer 
of  wood  and  a  drawer  of  water.  He  is  thriftless,  improvident 
and  indolent  by  nature,  because  frugality,  forethought  and  in- 
dustry were  not  needed  in  Africa,  where  the  soil  and  climate 
supplied  his  wants  and  provided  for  his  future.  Therefore 
here  he  requires  guidance  and  control, — some  rightful  supe- 
rior to  govern  him  for  his  own  good.  That  natural  govern- 
ment he  finds  in  the  white  man,  and  his  true  position  is  that 
of  a  peasant, — of  a  "^^r^rson  bound  to  service  or  labor,"  for 
such  terms  and  on  such  conditions  as  the  law  may  prescribe. 

Such  laws  ought  to  recognize  the  real  qualities  of  the  negro, 
one  of  which  is  his  capacity  for  improvement,  and  to  regulate 
the  terms  and  conditions  of  his  servitude  according  to  his  pro- 
gress, thus  opening  tlic  way  to  his  enjoyment  of  entire  free- 
dom.    Tliey  ought  also  to  recognize  the  grades  of  race,  and 


SLAVERY,  293 

the  fact  that  a  mixture  of  hlood  creates  differences  of  intellect 
and  character,  of  sensibility  and  aspiration,  which  justly  de- 
mand a  wider  scope  for  development  and  a  different  social  rank 
from  those  accorded  to  the  negro  of  the  whole  blood.  It  is 
.monstrous  that  at  this  moment,  in  the  South,  many  thousands 
of  mnlattoes  and  quadroons  arc  held  as  slaves  and  treated  as 
property.  The  laws  of  race  arc  thus  violated,  and  the  trans- 
gression, as  in  other  cases,  has  brought  its  appropriate  pun- 
ishment. 

Now,  what  is  the  place  assigned  to  the  negro  by  the  Con- 
stitution? It  does  not  call  him  a  citizen,  nor  rank  him  among 
the  people.  The  words  "we  the  people,"  with  Avhich  the  in- 
strument begins,  do  not  apply  to  him.  He  did  not  vote  for 
the  Convention,  he  was  not  consulted  in  any  way  about  the 
Constitution,  nor  did  he  help  to  ratify  it.  Neither  does  the 
Constitution  call  him  a  chattel,  but  uses  words  which  exclude 
the  idea  that  he  can  be  property,  and  which,  if  not  expressly 
meant  to  exclude  that  idea,  were  intended  to  open  his  way  to 
a  higher  position.  It  does  not  even  call  him  a  slave, — -the 
meaning  of  which  term  is,  a  person  subjected  for  life  to  the 
will  of  another.  It  describes  the  negro  as  a  "  person  held  to 
service  or  labor."  How  held?  By  the  law,  of  course,  and  for 
a  longer  or  shorter  time,  and  with  more  or  less  power  in  the 
hands  of  the  "  party  to  whom  such  service  or  labor  may  be 
due,"  as  the  law,  in  its  wisdom,  may  direct.  The  Constitu- 
tion thus,  while  it  does  not  expressly  condemn  or  prohibit  even 
chattel  slavery, — for  how  could  it,  and  in  the  same  breath  per- 
mit the  continuance  of  the  slave  trade, — vet  recognizes  and 
anticipates  a  rank  for  the  negro  race  which  suits  its  nature, 
and  may,  for  that  reason,  be  regarded  as  its  best  possible  or 
ideal  state.  It  permits  slavery,  but  throws  wide  open  the 
door  to  its  amelioration  and  gradual  extinction  in  the  States 
where  it  existed,  according  to  the  will,  not  of  the  black,  but  of 
the  Avhite  race  in  those  States. 

This  brings  us  to  the  consideration  of  the  second  element 
mentioned  above,  as  essential  to  any  plan  for  the  settlement 
of  the  difficult  subject  of  slavery  at  the  present  time. 

The  masses  of  the  negro  race  are  in  the  South.     They  are 


294  TnE    TRIAL    OF    THE     CONSTITUTION. 

four  millions  strong,  and  rapidly  increasing.  In  the  Cotton 
States  they  almost  equal,  in  many  regions  they  greatly  out- 
number the  -whites.  They  may  be  called  property,  but  they 
prove  their  claim  to  humanity  by  the  influence  they  exert  on 
the  white  race.  They  are  a  lower  type  of  man  than  the  Saxon, 
therefore  they  cannot  govern  him.  Tliey  cannot  approach  his 
level  of  civilization  or  have  mental  communion  with  him,  but 
must  remain  forever,  under  the  best  circumstances,  essentially 
alien,  because  permanently  inferior.  They  form  indeed  a  vast 
body  of  African  life,  introduced  into  the  midst  of  our  high  and 
progressive  Anglo-American  life,  its  inseparable  companion 
forever.  Look  at  it,  for  it  is  a  portentous  fact.  Africa,  trans- 
planted to  our  Southern  soil,  striking  root  into  it  with  tropical 
vigor,  sending  forth  in  all  directions,  like  the  banyan,  branches, 
which,  as  they  droop  to  the  ground  themselves  take  root, 
spreading  thus  the  dark  canopy  of  the  tree,  till  it  threatens 
to  usurp  and  overshadow  the  land.  This  is  the  condition  of 
the  South.  The  negro  race  there  is  dangerous  to  the  Saxon, 
because  of  its  numbers,  its  inherent  degradation,  its  incapacity 
for  civilization.  It  threatens  him  with  servile  war,  with  the 
pestilence  of  an  ever  increasing  mass  of  ignorance,  vice,  pau- 
perism, and  barbarism.  It  must  be  governed  by  somebody, 
for  it  cannot  govern  the  Saxon  or  itself.  To  save  the  South 
from  becoming  African,  Africa  in  the  South  must  be  regulated 
and  restrained  by  some  power  external  to  itself.  Now,  in 
whose  hands  ought  that  power  to  be  placed  ?  In  those  of  the 
Northern  people,  who  arc  safe  from  the  danger  and  ignorant 
of  its  nature,  and  therefore  ignorant  of  the  means  to  avert  it, 
and  without  the  motive  of  self-preservation  to  find  a  remedy 
or  to  use  one  ?  Is  it  not  too  plain  for  argument  that  power  to 
govern  the  negro  of  right  belongs  to  the  Southern  people,  Avho 
must  face  the  perils  of  his  presence  and  growth,  Avho  must  bear 
the  burden  of  his  weakness,  and  who  understand  his  character? 
Out  of  these  qualities  of  the  negro  has  grown  up  the  Avhole 
structure  of  Southern  society,  and  the  manners  of  the  people. 
The  negro  is  a  laborer,  and  thus  his  relation  to  the  white  race 
is  a  controlling  element  in  Southern  industry.  He  is  a  do- 
mestic servant ;  his  position  therefore  influences  the  most  pri- 


SLAVERY.  295 

vatc  and  sacred  concerns  of  the  family  and  fireside.  The  labor 
of  the  negro  is  the  source  and  support  of  Southern  prosperity. 
He  brings  out  of  the  soil  cotton,  tobacco,  corn,  rice,  sugar, 
and  these  constitute  the  wealth  of  the  Southern  people.  The 
position  held  therefore  by  the  negro  race  is  connected  in  the 
relation  of  cause  and  effect  with  the  safety,  the  social  arrange- 
ments, the  domestic  habits  and  the  prosperity  of  the  South, 
with  all  its  interests  and  with  all  its  hopes.  "Who  then  should 
govern  the  negro,  the  North  or  the  South  ?  This  question  has 
been  decided  wisely  and  well  by  the  Constitution. 

But  slavery  is  not  sectional,  it  is  national ;  national  in  its 
benefits  and  evils,  in  the  political  power  that  it  possesses,  in 
the  political  power  that  it  invokes  for  its  protection.  It  may 
elect  a  President ;  its  vote  may  control  the  action  of  Congress ; 
its  productions  have  enriched  the  nation,  and  its  treason  has, 
for  a  time,  at  least,  destroyed  the  Union.  Northern  men  have 
therefore  a  deep  interest  in  slavery.  They  have  also  much 
power  over  its  destiny.  Any  plan,  therefore,  to  arrange  the 
slavery  question,  must  satisfy  the  requirements  of  the  North. 

The  North  requires  the  Union.  A  separate  nation  esta- 
blished in  the  South,  by  its  conflicting  interests  and  its  foreign 
alliances,  would  endanger  the  safety  and  repose  of  the  North- 
ern people.  The  North  requires  the  Avhole  country  in  its 
length  and  breadth.  It  will  not  yield,  if  it  can  keep,  the  Mis- 
sissippi River  and  its  outlet,  the  Gulf  Coast  and  the  cotton 
crop.  It  needs  all  these  as  the  basis  and  support  of  its  great 
Northwestern  interior  trade,  its  foreign  commerce  and  its  ma- 
nufactures. The  North  requires  the  Southern  people,  its 
brethren  of  the  Saxon  race,  for  contented  fellow-countrymen. 
It  needs  their  prosperity  and  advancement  in  all  good  and 
worthy  things,  because  it  needs  their  poAver,  their  wealth,  their 
intelligence  and  valor  to  help  build  up  in  this  Western  World, 
a  great  empire  of  civilization,  to  surpass  the  marvels  of  the 
East.  But  the  North  has  other  than  these  material  wants.  It 
has  reached  a  point  of  moral  culture  that  must  not  be  revolted 
or  contradicted  by  the  Government.  The  Northern  people  do 
not  approve  of  slavery,  and  no  power  on  earth  can  make  them 
approve  it.    They  laugh  to  scorn,  laws  and  Supreme  Court  de- 


296  THE    TRIAL    OF    THE     CONSTITUTION. 

crees  '^vhich  declare  that  men  can  be  property.  Even  the 
human  relation  of  master  and  slave,  however  justified  by  cir- 
cumstances, they  know  to  be  fraught  with  danger  to  all  that  is 
good  and  noble  and  beautiful  in  character  and  manners. 

This  relation,  therefore,  is  an  evil  thing,  and  is  one  of  the 
evils  caused  by  the  presence  of  the  negro  race  in  large  num- 
bers at  the  South.  Against  the  spread  of  that  race  over  the 
territories  under  the  jurisdiction  of  this  Government,  the 
North  has  set  its  face  like  flint.  The  Government  is  the  trus- 
tee for  the  people  of  those  magnificent  tracts,  the  seat  of  future 
civilization  ;  and  not  by  the  aid  of  Northern  votes  shall  they 
and  their  posterity  be  cursed  by  Africa  and  slavery.  Both 
of  these  are  the  fate  of  the  Southern  States.  The  Govern- 
ment could  not,  if  it  had  the  legal  authority  and  the  desire, 
take  the  negro  out  of  those  States.  The  black  race  is  esta- 
blished there,  in  some  of  them,  forever  ;  in  others  for  an  uncer- 
tain period.  The  people  of  those  States  have,  by  moral  right, 
as  they  have  by  law,  the  power  to  govern  the  negro  by  their 
own  lights  and  according  to  their  own  views  of  safety  and  inte- 
rest. With  the  exercise  of  this  power  the  Northern  people 
have  no  wish  to  interfere,  but  they  insist  that  their  settled 
convictions  on  the  subject  shall  be  now  expressed,  and  their 
moral  sentiment  satisfied  by  the  Government. 

This  is  an  historical  period,  decisive  of  the  fate  of  the  nation. 
We  are  in  the  midst  of  a  great  war.  Fundamental  principles 
are  examined  and  discussed.  We  are  perhaps  on  the  eve  of 
great  changes.  Instructed  by  the  past,  let  us  try  to  provide 
for  the  future.  Let  us  settle  this  vexed  slavery  question, 
and  that  we  may  place  it  on  firm  foundations,  let  Congress  do 
what  the  Constitutional  Convention  failed  to  do, — tell  the  truth. 
The  (lifficidty  has  been  to  find  out  some  comprehensive  plan 
that  may  contain  that  justice  which  at  last  satisfies  all  men. 
To  this  object  discussion  and  controversy  have  been  long 
tending,  each  party  pressing  its  own  interests  and  views.  In 
the  Federal  and  State  Legislatures,  in  lectures  and  speeches  of 
every  kind,  in  the  current  literature  and  in  all  journalism,  the 
rights  of  the  North,  the  rights  of  the  South,  and  the  rights  of 
the  negro  have  each  found  zealous,  and  in  many  cases,  most 


SLAVERY.  297 

able  advocates.  But  various  obstacles  have  always  started 
up  in  any  path  that  promised  to  lead  out  of  the  wilderness, — 
sectional  interests,  State  rights,  legal  questions.  Yet  out  of 
this  Avilderness  we  must  go  or  be  lost. 

At  length  the  pathfinder,  as  we  thought,  had  appeared  in 
Mr.  Lincoln.  The  road  to  which  he  points  seems  so  obvious 
and  easy,  that  the  wonder  is  no  one  ever  noticed  it  before. 
The  discovery  is  announced  by  his  Message  of  March  ()th,  in 
a  few  simple  sentences  according  to  his  custom.  "  The  United 
States  ought  to  co-operate  with  any  State,  which  may  adopt 
gradual  abolishment  of  slavery,  giving  to  such  State  pecuniary 
aid,  to  be  used  by  such  State,  in  its  discretion,  to  compensate 
for  inconveniencies,  public  or  private,  produced  by  such  a 
change  of  system."  These  words  are  full  of  meaning.  If  they 
do  not  cover  the  whole  ground,  they  go  as  far  as  the  Constitu- 
tion permits. 

To  the  negro  they  offer  hope,  the  assurance  of  sympathy, 
and  the  promise  of  aid  in  his  favor,  so  far  as  the  Government 
has  power  to  interfere.  To  the  Southern  people  they  declare 
respect  for  State  rights,  and  concede  to  them  full  power  over 
the  negro  race.  At  the  same  time  the  Message  says  to  the 
South  in  all  candor :  "  Slavery  is  not  itself  a  good  thing ;  at 
best  it  is  a  necessary  evil.  When  you  are  convinced  that  it  is 
so,  and  wish  to  get  rid  of  it,  ask  the  Government  for  help  and 
you  shall  have  help.  You  see  now  how  foolish  you  have  been. 
We  always  told  you  we  did  not  intend  to  attack  slavery,  but 
to .  defend  it.  You  would  not  believe  us,  but  believed  the 
Abolitionists.  This  Government  has  been  and  is  the  only  de- 
fence of  slavery.  Even  during  the  war  it  has  protected  it, 
and  it  offers  now  to  do  so  notwithstanding  the  war." 

The  Message  offers  also  satisfaction  to  the  Northern  senti- 
ment against  slavery.  It  pledges  both  the  legal  action  and 
the  moral  influence  of  the  GovernTneat,  not  only  against  its 
extension,  but  for  its  extinction,  by  a  safe  and  gradual  process 
that  shall  do  justice  to  vested  rights,  and  avoid  the  mischiefs 
of  sudden  change.  The  Message,  therefore,  puts  the  nation 
in  its  true  position  before  the  tribunal  of  the  world's  opinion. 
It  tells  the  truth,  which  the  Constitution  failed  to  do,  and  pro- 


298  THE     TRIAL     OF    THE    COXSTITUTION. 

claims  to  the  age,  that  this  Government  tolerates  slavery,  but 
does  not  approve  it ;  prohibits  where  it  can,  and  maintains  it 
only  Avhere  it  must ;  that  slavery  is  not  an  American  but  an 
African  institution,  and  is  here  only  because  Africa  is  here. 

In  accordance  with  the  suggestion  made  by  Mr.  Lincoln, 
Congress  has  already  passed  a  bill  offering  pecuniary  aid  to 
the  States  that  may  desire  to  get  rid  of  slavery.  They  have 
also  abolished  slavery,  ■with  compensation  to  masters,  in  the 
District  of  Columbia,  and  an  Act  has  just  passed  the  House 
of  Representatives  (May  13th),  prohibiting  slavery  forever  in 
the  Territories.  These  measures  are  all  within  the  power  of 
the  Government.  To  go  further  Avould  transcend  the  Consti- 
tution. For  the  existence  and  condition  of  slavery  in  the 
country,  therefore,  this  Government  is  no  longer  responsible. 
These  measures  are  wise  and  just  because  they  express  the  en- 
lightened convictions  of  the  Northei-n  people,  who  as  the  great 
majority  of  the  nation,  have  a  right  to  demand  that  their 
sentiments  shall  be  represented  by  the  Government.  They 
also  accord  with  the  spirit  of  the  age,  which  cannot  be  disre- 
garded without  loss  of  national  reputation  and  position. 

All  these  acts,  however,  though  so  just  and  moderate,  were 
opposed  by  most  of  the  members  from  the  border  Slave  States, 
and  by  Northern  Democrats.  Does  this  opposition  proceed 
from  sectional  pride,  or  a  desire  to  maintain  slavery  as  an 
element  of  party  power,  or  from  an  honest  conviction  that  sla- 
very is  a  blessing,  and  ought  to  be  cherished  and  extended? 
Whatever  the  cause,  the  fact  of  opposition,  especially  of  North- 
ern opposition,  to  such  measures  is  ominous  of  future  difficulty. 
It  creates  a  doubt  whether,  when  our  fathers  endeavored  to 
unite  slavery  and  liberty  under  the  same  Constitution,  they 
did  not  attempt  what  is  in  the  nature  of  things  impossible. 
Are  the  Abolitionists  right  then  when  they  declare  that  the 
Northern  people  have  no  •choice  on  this  subject,  the  eternal 
truth  having  said  to  them  :  "Either  destroy  slavery  now,  or 
permit  slavery  to  destroy  the  Union.  You  can  have  no  fellow- 
ship with  an  evil  and  wrong  thing.  Whether  slavery  be  in 
the  Union  or  out  of  it,  you  can  never  live  in  peace  with  it  as 
your  close  neighbor.     Between  slavery  and  liberty,  between 


SLAVERY.  299 

negro  barbarism  and  Saxon  civilization,  there  is  and  must  be 
eternal  war,  an  '  irrepressible  conflict '  that  Avill  never  cease 
but  with  the  absolute  triumph  of  one  or  the  other.  Better 
settle  this  conflict  now  if  you  can."  Perhaps  after  all  this  is 
what  the  Sphinx  means.  Truly  may  it  be  said  that  Africa  has 
invaded  and  conquered  our  country,  and  though  we  may  call 
the  negro  a  slave,  he  is  the  master  of  our  destiny. 


The  President's  proposal  went  as  far  as  the  Constitution 
permits.  It  was  addressed  to  the  Border  States,  from  which 
slavery  must  be  banished,  sooner  or  later,  by  the  operation  of 
natural  causes.  It  was  intended  to  reassure  them  as  to  the 
intentions  of  the  Government,  and  thus  to  confirm  their 
wavering  loyalty,  secure  their  adhesion  to  the  Union,  and 
deprive  the  leaders  of  the  rebellion  of  all  hope  of  gaining 
those  States  to  their  cause.  As  a  practical  measure  it  can 
have  ho  efi'ect,  in  the  manner  proposed,  upon  slavery  in  the 
Cotton  States,  which  are  the  seat  of  its  empire ;  not  only 
because  they  would  reject  it  with  scorn,  but  because  compen- 
sation is  out  of  the  question,  so  large  is  the  value  of  the 
negroes. 

But  the  moral  influence  of  this  Message  is  of  great  import- 
ance. It  does  what  the  framers  of  the  Constitution  failed  to 
do, — it  tells  the  truth.  It  does  wdiat  no  administration  has 
dared  to  do  since  the  Constitution  was  made.  It  proclaims 
that  chattel  slavery  is  an  evil  thing  Avhich  ought  to  be  got  rid 
of.  The  act  of  Congress,  which  followed  the  message,  pro- 
claims that,  for  the  sake  of  getting  rid  of  it,  the  Government 
and  the  American  people  are  willing  to  pay  large  sums  of 
money,  as  England  did,  to  accomplish  the  same  object.  It 
says,  "  We  would  abolish  slavery  if  we  could,  and  we  would 
do  it  with  just  consideration  for  the  interests  connected  with 
it.  The  only  reasons  why  we  do  not  abolish  it  are,  first, 
those  interests  are  too  vast  for  the  national  treasury  to  pur- 
chase; and,  secondly,  we  have  not  the  constitutional  power. 
All  that  we  could  do,  we  have  done." 


300  THE    TKIAL     OF    THE     CONSTITUTION. 

This  is  a  great  step  on-ward.  Compare  it  -with  the  humble 
beri:inniiif!;s  of  the  Abolition  enthusiasts,  with  the  Missouri 
Compromise,  with  the  last  atrocious  fugitive  slave  law,  with 
the  Leconipton  Constitution,  with  the  Dred  Scott  decision, 
and  the  progress  of  opinion  is  obvious.  Moreover,  it  is  an 
irrevocable  step :  no  backward  one  can  be  taken.  The  tide 
of  opinion  which  has  floated  the  nation  to  this  high-water 
mark,  knows  no  ebb.  It  flows  from  perennial  fountains  seated 
deep  in  the  heart  of  humanity,  in  the  moral  sentiment  of  the 
world;  fountains  unsealed  at  Calvary  and  on  the  Mount. 
The  message  may  fail  as  to  any  immediate  practical  result ; 
the  act  of  Congress  may  never  be  carried  into  eff"ect,  and 
probably  will  not ;  neverthless  they  ai"e  records  which  an- 
nounce the  fact,  that  the  Northern  people  of  this  country, 
after  seventy  years'  experience,  have  condemned  slavery  as  it 
exists  in  the  South,  even  though  they  permit  it  to  exist. 
Had  the  framers  of  the  Constitution  done  this  as  emphatically, 
what  mischief  they  would  have  prevented. 

It  may  be  doubted,  however,  whether  the  Message  reaches 
the  root  of  the  evil,  for  it  cannot  be  executed  throughout  the 
South.  Our  fathers  did  not  venture  to  make  the  Constitution 
express  their  disapprobation  of  slavery.  They  did  not,  like 
Mr.  Lincoln,  declare  that  slavery  is  an  evil  thing.  They  did 
not  say,  we  permit  it  for  a  time,  only  because  we  are  forced 
to  do  so  by  inexorable  necessity,  and  because  we  hope  it  will 
ere  long  disappear.  They  refused,  indeed,  to  use  any  words 
in  the  Constitution  which  implied  that  there  could  be  property 
in  men.  Nevertheless,  they  permitted  the  slave  trade,  based 
upon  the  idea  of  such  property;  and  they  provided  for  the 
return  of  fugitive  slaves,  treated  at  the  time  as  property  by 
the  laws  and  practice  of  the  South.  Whatever  the  language 
they  employed,  therefore,  impliedly  they  did  recognize  men 
as  property.  The  most  that  can  be  said  of  this  part  of  tlieir 
work  is,  that  they  could  not  bring  themselves  to  say,  in  plain 
terms,  what  they  were  obliged  to  do;  that  tliey  refused  to 
blot  the  Constitution  with  the  open  avowal  of  what  they  felt 
to  be  false ;  that  they  tliouglit  they  cleared  themselves  of  re- 
sponsibility by  leaving  the  matter  exclusively  to  the  States; 


SLAVERY.  301 

and  that  they  used  phrases  which  are  applicable  to  a  different 
position  of  the  negro,  if  the  States  should  clioose  to  give  him 
a  different  position.  He  might  be  "  a  person  held  to  service 
or  labor,"  and  yet  not  property.  The  States  interested  have 
not  chosen  to  give  him  a  different  position.  It  is  impossible 
to  say  that  they  have  not,  for  this  determination,  the  sanction 
of  the  Constitution, 

But  slavery  has  been  found  inconsistent  with  the  Union. 
It  is  not  enough  that  it  suits  the  South ;  Northern  opinion 
must  be  satisfied  also.  Let  us  inquire  why  slavery  is  incon- 
sistent with  the  Union.  Perhaps  thus  some  basis  may  be 
discovered  on  which  a  Union  may  be  founded. 

It  is  not  true  that  there  can  be  property  in  men.  The 
■  eternal  laws  of  nature  which  govern  both  men  and  property, 
contradict  such  a  dogma ;  and  no  Constitution,  by  asserting 
it,  however  expressly,  can  make  it  true,  any  more  than  it  can 
make  it  true  that  two  and  two  are  fifty,  or  that  the  three 
angles  of  a  triangle  are  a  circle.  Let  any  one  attempt  to 
keep  books  by  the  first  of  these  rules,  or  to  build  houses  by 
the  second,  and  he  will  fail.  In  like  manner  a  Constitution 
that  attempts  "  to  form  a  more  perfect  union,  establish 
justice,  insure  domestic  tranquillity,  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty,"  by  means  of  a  government  founded  on  a  false- 
hood, will  fail ;  more  especially  if  that  falsehood  be  moral, — 
be  the  denial  of  principles  to  which  obedience  is  duty. 

The  moral  laws  punish  transgressors.  An  untruth,  a  lie, 
will  work  after  its  kind  in  spite  of  wise  conventions.  A  lie 
poisons  all  human  relations.  It  inflames  and  festers  whatever 
surrounds  it,  like  a  thorn ;  and  the  only  remedy  is  to  pull  it 
out.  Put  an  untruth  into  a  constitution,  more  especially  a 
moral  untruth,  and  so  long  a*  it  remains  there  it  will  bear  its 
natural  fruits,  which  are  not  peace  and  order,  but  confusion 
and  strife. 

The  laws  of  God  declare  that  man  is  not  property;  that 
things,  not  men,  are  property.  The  Constitution  says  that 
men  may  be  made  property  by  the  laws  of  a  State.  This 
untruth  has  been  the  cause  of  all  our  troubles.     It  has  been 


302  THE     TRIAL     OF     THE     CONSTITUTION. 

inflaming  and  festering  our  body  politic  from  the  beginning, 
throwing  it  from  time  to  time  into  hot  fevers  and  convulsive 
paroxysms ;  at  length  it  has  burst  into  a  soi'e,  running  blood. 

Let  us  look  for  a  moment  at  the  natural  consequences  of 
this  doctrine.  Because  it  was  false  it  was  sure  to  be  attacked. 
That  is  the  fate  of  all  falsehood  in  an  enlightened  age,  and  in 
a  country  where  freedom  of  speech  and  of  the  press  prevail, 
or  even  where  they  do  not, 

"  For  stony  limits  cannot  keep  love  out," — 

love  of  beauty,  or  love  of  truth.  Neither  can  laws,  or  guards, 
or  police,  be  they  never  so  perfect,  keep  thought  out,  or  prevent 
its  free  range.  It  has  ways  of  its  own  to  accomplish  its  pur- 
poses. It  can  drive  a  coach-and-six  through  a  statute,  glide- 
through  the  ranks  of  armies,  and  stand  an  invisible  but  com- 
manding presence  by  the  side  of  an  oppressor's  throne.  It 
can  visit  the  plantation  hut  of  the  negro.  The  birds  of  the 
air  will  carry  it  wherever  a  truth  is  made  captive,  wherever  a 
falsehood  lives;  and  sooner  or  later,  the  truth  will  be  liberated 
and  the  falsehood  die, — though  the  deliverer  brings  often  not 
peace  but  a  sword. 

The  idea  that  men  can  be  property  was,  therefore,  sure  to 
be  attacked.  It  was  as  sure  to  be  defended,  wherever  men 
were  treated  as  property,  and  because  they  were  so  treated. 
Property  will  always  be  defended  by  its  owners ;  and  so  will 
power. 

"  Plate  sin  with  gold, 
And  the  strong  lance  of  justice  hurtless  breaks : 
Arm  it  in  rags,  a  pigmy's  straw  doth  pierce  it." 

So  it  has  always  been.  Truth  has  won  her  great  victories, 
not  by  the  sword  of  the  spirit  only.  Connect  wealth  and 
power  with  a  falsehood  and  they  will  fight  for  it.  Make  the 
slaves  valueless  and  the  Southern  people  will  readily  acknow- 
ledge that  they  are  not  property.  Make  them  worth  two 
thousand  millions  of  dollars,  and  an  army  with  banners  will 
arise  to  declare,  by  defiant  volleys,  that  property  they  are  and 
shall  be.  So  it  has  happened  with  us.  The  owners  of  this 
property  scented  danger  from  afar  and  prepared  for  it.  So 
long  as  they  could  control  the  Government  they  were  willing 


SLAVERY.  303 

to  live  under  it  and  use  it.     As  soon  as  they  ceased  to  control 
it,  they  answered  the  ballot-box  by  bayonets. 

The  falsehood  that  men  can  be  property,  therefore,  after 
giving  many  warnings  of  its  dangerous  nature,  has  at  length 
caused  this  war.  It  Avill  cause  war  so  long  as  it  remains  in 
the  practice  of  the  South,  because  it  will  always  be  assailed  by 
enlightened  opinion.  Nothing  can  prevent  this  but  the  forci- 
ble suppression  of  all  organs  of  that  opinion,  meetings  of  the 
people,  free  speech,  a  free  press  and  the  ballot-box.  This  has 
long  been  done  in  the  South  so  far  as  slavery  is  concerned. 
Slavery  and  freedom  are  eternal  foes  and  cannot  live  together. 
But  it  cannot  be  done  in  the  North.  Is  it  not  true,  then, 
that  a  Union  between  N^orth  and  South,  on  the  basis  that  men 
are  property,  is  impossible  ? 

The  Constitution  does  not  say  that  men  are  property,  but 
it  does  not  say  they  are  not.  It  leaves  that  question  to  be 
decided  by  the  local  authority  of  the  States.  It  is  one  of 
their  reserved  powers.  AVhatever  they  decide,  the  central 
Government  stands  ready  to  execute,  so  far  as  its  action  may 
be  necessary.  As  the  Northern  States  are  represented  in  the 
central  Government,  they  are  thus  required  to  be  not  merely 
passive  spectators  of  Avhat  the  South  may  do,  but  actively  to 
participate  in  what  they  do. 

Of  this  the  clause  in  the  Constitution  relating  to  fugitive 
slaves  is  an  example.  Why  was  that  clause  introduced  ?  Is 
it  not  because  it  is  false  that  men  are  property,  and  therefore 
some  constitutional  provision  was  necessary  to  protect  it  ? 
The  ordinary  legal  remedies  are  sufficient  for  every  other  sort 
of  property.  The  Constitution  says  nothing  about  horses  and 
cattle  escaping  from  the  South.  But  because  by  the  laws  of 
nature  men  are  not  property,  the  organic  laAV  and  the  central 
power  of  the  nation  were  thought  necessary  to  enforce  the 
dogma  that  they  are.  And  Avhy  have  the  laws  passed  to  carry 
out  this  clause  of  the  Constitution  failed  of  execution,  been 
obeyed  with  reluctance,  been  obstructed,  in  some  cases  re- 
sisted ?  Is  it  not  because  men  prefer  the  laws  of  nature  to 
the  law"  of  the  Constitution  ?  Because  they  are  revolted  at 
being  required  to  lie,  to  say,  or  to  act  as  if  they  admitted  that 


304  THE     TRIAL     OF     THE     CONSTITUTION. 

men  are  property,  when  they  feel  that  it  is  false  ?  It  is  im- 
possible to  execute  such  a  law  without  dissatisfaction  and  re- 
sistance in  any  moral  or  enlightened  community.  That  it  has 
been  partially  executed  in  the  North,  that  it  has  not  been 
universally  rejected  and  spurned,  is  proof  of  the  love  of  the 
people  for  the  Union.  They  have  done  what  the  framers  of 
the  Constitution  did.  For  the  sake  of  the  Union  they  have 
been  willing  to  acquiesce  in  a  lie.  They  have  endeavored, 
also,  to  shift  the  responsibility  on  the  General  Government, 
as  the  Convention  did  on  the  States.  "  Thou  canst  not  say  I 
did  it.  The  Government  does  it,  and  by  its  OAvn  officers." 
Had  the  Southern  States  by  their  laws  and  their  practice 
made  slavery  the  relation  of  a  man  to  a  man,  not  of  a  man  to 
a  thing ;  had  they  rendered  the  mercenary  element  subordi- 
nate to  the  human  ;  had  they  given  to  the  slave  rights  which 
opened  to  him  the  path  to  freedom,  in  cases  where  he  is  fitted 
for  freedom,  there  would  have  been  no  opposition  to  the  fugi- 
tive slave  law.  To  restore  a  servant  to  his  master  is  one  thing. 
To  restore  a  man,  as  a  chattel,  to  his  owner,  is  a  very  different 
thing. 

It  seems,  therefore,  that  when  the  -Constitution  gave  to  the 
Southern  States  the  exclusive  right  to  govern  the  negro,  they 
attempted  what  was  impossible,  unless  those  States  choose  to 
govern  him  as  a  man  and  not  as  a  thing,  by  Divine  law  instead 
of  slave-traders'  laAV.  If  they  will  do  that,  Union  and  the 
Constitution  would  become  possible.  Because  they  have  not 
done  it,  the  Union  has  been  broken  and  the  Constitution  can- 
not be  executed. 

Why  is  it  that  this  humble,  despised  race  has  such  fatal 
power,  not  over  the  South  only,  where  it  dwells,  but  over  the 
whole  nation,  power  to  involve  us  in  the  calamities  of  civil  war, 
to  impose  on  us  and  on  posterity  the  heavy  burden  of  taxa- 
tion and  debt ;  power,  perhaps,  to  break  our  proud  empire 
into  fi-agments  ?  Is  it  not  because  the  eternal  truth  is  its 
champion  ?  Is  it  not  because,  being  humble,  we  have  dared 
to  despise  it,  though  created  by  the  same  God  that  created 
us?  The  interests,  the  rights,  the  well-being  of  the  negro 
have  been  left  out  of  our  selfish  contests  as  unworthy  our  re- 


SLAVERY,  305 

gard.  We  have  looked  calmly  on  and  seen  him  used  exclu- 
sively as  an  instrument  of  gain,  bred  for  sale  and  driven  like 
sheep  and  cattle  to  the  market.  It  is  unconstitutional  to 
interfere,  we  said,  and  cotton  is  a  good  thing.  But  we  have 
been  forced  to  interfere  or  become  slaves  ourselves.  The 
negro  has  thus  obliged  us  to  care  for  him  in  order  to  save 
ourselves.  "We  Avill  make  your  country  not  worth  living  in," 
he  says  to  us,  "unless  you  make  it  worth  our  living  in.  We 
have  neither  wealth  nor  power,  but  we  create  wealth  and 
power  that  will  be  your  enemies  until  you  do  us  justice.  We 
cannot  vote  or  fight,  but  we  can  make  men  of  your  own  race 
vote  or  fight  to  your  destruction,  unless  you  grant  us  our 
rights.  Give  us  our  proper  place  in  the  social  system  of  which 
■we  form  a  part,  or  Avith  your  own  people  who  live  with  us  in 
the  South,  3^ou  shall  have  perpetual  Avar  or  become  their  base 
instruments  for  our  degradation." 

What  is  that  proper  place  ?  The  Southern  people  must  find 
it  out.  It  is  not  that  of  a  chattel,  because  a  negro  is  a  man. 
Some  position  as  a  man  is  his  due.  He  cannot  be  equal,  he 
must  always  be  inferior  to  the  Saxon.  Nature  has  created 
that  difference.  He  must  be  a  servant.  Then  make  him  a 
servant.  His  services  are  valuable.  His  master  has  a  pro- 
pert}^  in  them,  but  not  in  him.  Then  say  so,  and  found  your 
system  on  that  principle.  Give  him  the  rights  of  a  servant ; 
do  not  deprive  him  of  all  rights  as  a  man.  Treat  a  man  ac- 
cording to  his  just  relations,  either  as  a  superior,  an  equal  or 
an  inferior,  and  harmony  is  the  result.  Violate  those  rela- 
tions and  the  eternal  law  vindicates  itself  by  the  disorder  and 
strife  that  ensue. 

Take  from  slavery  the  element  of  property, — even  svdDordi- 
nate  that  element  to  its  true  rank,  and  slavery  Avill  be  dis- 
armed of  its  terrible  power  over  the  country.  The  negro  must 
still  be  governed  by  the  white  race,  and,  as  he  becomes  con- 
centrated in  the  extreme  South,  must  continue  to  subject  its 
people  to  the  injurious  influences  of  an  inferior  race ;  but  Avhen 
he  ceased  to  be  property,  he  would  no  longer  play  a  part  in 
the  politics  of  the  nation.  Obey  the  truth.  Give  him  the  po- 
sition for  which  he  is  fitted  by  nature,  and  he  would  be  no 

20 


306  THE    TRIAL     OF    THE     CONSTITUTION. 

longer  dangerous.  There  would  have  been  no  Abolition  party 
in  the  North,  had  not  the  negro  been  made  property  by 
Southern  laws.  The  Southern  people  would  not  have  made 
war  about  him,  had  ho  not  been  property. 

But  what  can  we  do  ?  The  President's  scheme  of  condi- 
tional, compensated,  gradual,  contingent  emancipation,  cannot 
be  executed.  Even  should  the  South  accept  it,  the  property 
element  rises  up  and  forbids  its  execution.  Cotton  has  swelled 
the  property  in  man,  permitted  by  the  Constitution,  into  such 
gigantic  size,  that  the  country,  rich  as  it  is,  is  not  rich  enough 
to  buy  it.  Shall  Ave,  for  the  sake  of  the  Union,  abolish  sla- 
very by  the  exertion  of  the  supreme,  imperial  power  of  the 
Government,  which,  as  argued  in  the  first  tAvo  chapters  of  this 
volume,  is  paramount  to  the  Constitution  ?  This  plan  Avould 
also  be  impossible,  for  two  reasons.  First,  because,  should 
tho  result  of  the  war  be  the  restoration  of  the  Southern  States 
to  the  Union,  they  would  never  consent  to  it,  and  could  defeat 
it  by  their  OAvn  and  Northern  votes.  Secondly,  because  eman- 
cipation, without  compensation  to  the  master,  would  be  unjust. 
We  cannot  remedy  one  wrong  by  committing  another ;  we  can- 
not permit  property  to  be  acquired  under  the  laAV,  and  then 
take  it  away  by  law. 

Shall  we,  then,  should  victory  give  us  the  poAver,  restore 
the  "Union  as  it  Avas?"  Do  the  Northern  people  really  de- 
sire to  see  it  restored, — the  old  "tar  and  feather  Union," 
under  Avhich  no  Northern  man  could  visit  the  South,  Avithout 
risk  of  insult  and  outrage,  unless  he  Avorshipped  slavery ; 
under  Avhich  the  Northern  people  were  converted  into  a  police 
to  catch  runaAvay  negroes ;  under  Avhich  the  threat  of  separa- 
tion and  civil  Avar  Avas  constantly  brandished  over  Northern 
elections  ;  a  Union  Avhich  was  so  Aveak  that  it  could  be  broken 
by  350,000  slave-owners ;  a  Union  Avith  a  section  that  Avas  ex- 
clusively sectional  and  aggressive  in  all  its  feelings  and  aims ; 
a  Union  Avith  receding  civilization  and  advancing  barbarism ; 
a  Union  based  upon  a  falsehood ;  a  Union  Avith  an  element  in 
it  of  perpetual  agitation,  strife  and  war ;  in  short,  a  Union 
Avith  chattel  slavery, — do  Ave  Avish  to  restore  such  a  Union  ? 
Fortunately  for  us,  it  cannot  be  restored.     It  had  long  ceased 


SLAVERY.  807 

to  be  a  Union  of  affection  and  sympathy.  This  truth  has  at 
length  become  manifest  in  f:ict.  "  The  Union  as  it  was"  has 
gone  forever.  Separation,  with  all  its  dangers,  is  to  be  pre- 
ferred to  such  a  Union,  with  all  the  wealth  and  power  that  it 
brought.  "Better  is  a  dinner  of  herbs  where  love  is,  tlian  a 
stalled  ox  and  hatred  therewith."  "Better  is  a  handful  with 
quietness  than  both  hands  full  with  travail  and  vexation  of 
spirit." 

As  already  stated,  the  essential  conditions  of  any  plan  by 
which  slavery  can  be  made  consistent  with  the  existence  of 
the  Union  are  threefold.  First,  it  must  do  justice  to  the 
negro,  and  accord  to  him  his  rightful  position  as  a  man.  Se- 
condly, it  must  respect  the  rights  of  the  Southern  people, 
which  require  that'  the  negro  race  shall  be  governed  by  them, 
and  not  by  the  Northern  people.  Thirdly,  it  must  respect  the 
interests,  the  moral  sentiment,  the  conscience  and  opinion  of 
the  Northern  people,  who  have  a  right  to  be  heard  on  the  sub- 
ject, because  they  participate  in  the  government  of  the  negro 
race  by  means  of  the  central  power,  and  are  therefore  respon- 
sible for  his  good  government. 

All  these  conditions  have  been  violated.  The  South,  by 
disregarding  the  rights  of  the  negro,  by  refusing  to  regard 
him  as  anything  better  or  higher  than  property,  has  outraged 
the  sentiment  of  the  Northern  people.  The  result  of  this  was 
the  rise  and  growth  of  the  Abolition  party,  who  undertook  to 
interfere  with  the  exclusive  control  of  the  negro  by  the  South ; 
and  resistance  to  the  designs  of  this  party  has  caused  the  pre- 
sent war,  the  object  of  which  is  the  destruction  of  the  Union, 
and  has,  indeed,  at  least  for  the  time,  caused  its  destruction. 

This  result  was  sooner  or  later  inevitable.  A  falsehood, 
however  bolstered  up  and  hedged  round  by  law,  will  always, 
among  a  civilized  and  free  people,  be  attacked  by  the  minis- 
ters of  truth.  A  falsehood  that  sustains  wealth  will  always  be 
defended  by  the  owners  of  that  wealth.  Thence  war.  For 
these  reasons  the  old  Union  failed.  For  many  years  it  had 
ceased  to  be  a  real  Union,  but  had  become  a  repressed  conflict 
between  truth  and  falsehood,  right  and  wrong.  At  length  the 
conflict,  as  was  its  nature,  became  irrepressible,  and  has  broken 


308  THE    TRIAL    OF    THE     CONSTITUTION. 

the  Union,  Avliicli  can  never  be  restored.  It  was  not  worth 
keeping,  and  is  not  worth  restoring. 

Nevertheless,  a  Union  we  must  liave,  if  possible ;  if  not  the 
Union  as  it  was,  the  Union  as  it  ought  to  bo, — a  Union  of  all 
the  States  under  the  old  Constitution  and  the  old  flag.  We 
can  never  have  one,  unless  Ave  get  rid  of  the  falsehood  which 
destroyed  the  former. 

As  already  shown,  we  cannot  do  this  by  the  President's 
plan  of  emancipation  by  the  States,  with  compensation  to  the 
owners,  furnished  by  the  central  Government ;  we  cannot  do 
it  by  an  act  of  emancipation  by  the  central  Government ;  we 
cannot  do  it  by  emancipation  as  a  war  measure,  unless,  indeed, 
a  very  large  portion  of  the  slaves  could  be  thus  set  free,  and 
such  a  spirit  of  insubordination  sjjread  among  the  negroes  as 
to  render  slavery  thenceforward  impossible. 

But  does  not  the  history  of  emancipation  in  the  Northern 
States  suggest  a  remedy  ?  The  Legislatures  of  Pennsylvania 
and  New  York, — the  former  in  1780,  the  latter  in  1799, — 
passed  acts  declaring,  that  every  child  born  of  a  slave,  after  a 
certain  date,  should  be  free.  By  these  laws,  all  existing  rights 
to  property  in  slaves  were  respected.  The  process  was  gra- 
dual. No  shock  was  sjiven  to  established  social  relations  and 
habits.  Time  Avas  afforded  to  prepare  the  negroes,  as  well  as 
their  masters,  for  the  change,  and  the  evils  that  must  attend 
sudden  emancipation  were  thus  prevented. 

AVould  not  this  plan  fulfil  the  conditions  above  mentioned, 
as  essential  to  the  peaceful  and  permanent  settlement  of  the 
question  ? 

It  would  do  justice  to  the  negro.  It  would  convert  him 
from  an  article  of  merchandise  into  a  man.  It  would  take 
out  of  our  law  the  untruth  that  men  are  the  subjects  of  pro- 
perty. Even  those  who  remained  slaves  would  be  benefited, 
whilst  they  would  avoid  the  risks  of  being  suddenly  placed  in 
a  j)osition  for  wliich  they  are  unfitted  by  previous  habit.  Their 
cliildren  would  be  free.  They  would  gain  self-respect  by  the 
elevation  of  their  race,  and  would  gain,  also,  respect  from 
others.  Under  these  circumstances,  to  the  larger  portion  of 
them,  their  servitude  would  be  a  protection  and  a  blessing. 


SLAVERY.  309 

The  rights  of  the  Southern  people  would  be  respected,  so 
far  as  those  rights  are  consistent  with  the  safety  and  tran- 
quillity of  the  nation.  Their  property  in  slaves  would  be  un- 
touched. Their  right  to  govern  the  negro,  as  a  man  of  an 
inferior  race,  would  be  untouched.  The  law  would  say  to  the 
South,  give  him  the  place  of  an  inferior.  He  is  entitled  only 
to  that,  but  you  must  not  make  him  property,  for  by  the  laws 
of  nature  he  is  not  property.  It  would  then  be  for  the  South- 
ern States  to  enact  such  laws  as  their  own  safety  and  interest 
required,  and  ample  time  would  be  allowed  for  deliberation. 
Their  social  system  would  be  changed,  but  it  would  be  slowly 
changed.  They  would  be  benefited.  It  does  not  follow  that 
because  the  negro  is  not  property  that  he  must  not  work,  that 
he  must  not  be  compelled  to  work.  It  does  not  follow  that  he 
is,  on  ceasing  to  be  merchandise,  to  become  entitled  to  all  the 
rights  of  a  freeman  or  permitted  to  become  a  lazy  lazzaroni,  a 
mass  of  ignorance,  pauperism  and  crime.  It  does  not  follow 
that  he  should  not  be  a  servile  class,  provided  the  law  secures 
to  him  the  rights  of  a  man.  It  would  be  for  the  Southern 
States  to  arrange  that  by  law.  Emancipation  has  succeeded 
in  the  West  Indies  and  in  British  Guiana.  That  fact  is  now 
be^'Ond  dispute.  The  negroes  are  contented  and  industrious. 
These  islands  are  more  prosperous  than  ever.  They  are 
demanding  more  labor, — free  labor  of  coolies  or  negroes. 
They  would  Avelcome  an  emigration  of  the  latter  from  the 
South.  Their  climate  does  not  permit  the  white  man  to  work, 
but  they  have  vast  tracts  of  land,  producing  the  most  costly 
articles  of  the  world's  commerce.  They  are  now  begging  for 
the  free,  voluntary  labor  of  the  dark  races  to  develop  the  re- 
sources of  their  country.  Give  us  coolies  and  negroes,  they 
say,  working  for  wages,  well  paid  and  well  treated,  and  we  will 
grow  boundless  cotton,  coffee,  sugar,  and  tobacco.  They  had 
slavery  once,  but  were  forced  to  give  it  up.  They  are  now 
satisfied  Avith  free  labor  and  would  not  return  to  slavery. 
Why  should  not  the  same  thing  happen  in  our  Southern 
States  ? 

They  would  be  benefited  in  another  way  by  the  change. 


310  THE    TRIAL    OF    THE     CONSTITUTION. 

The  evil  influences  of  an  inferior  race  on  their  civilization 
>vouhI  be  mitigated.  These  influences  must  always  be  very 
great,  for  reasons  already  mentioned,  -with  or  -without  slavery. 
The  new  Africa  that  has  been  founded  in  America  Avill  always 
have  some  of  the  characteristics  of  Africa.  It  is  impossible  to 
introduce  a  barbarous  population  without  introducing  barbar- 
ism. Africa  in  America  is  a  fact,  irremovable  by  any  force 
at  our  command.  The  only  course  is  to  accept  the  inevitable 
and  find  out,  if  we  can,  some  means  to  diminish  its  power. 

One  way  w-ould  be  to  lessen  the  injurious  moral  effects,  that 
the  presence  of  a  subject  race  must  have  upon  the  governing 
race.  These  effects  are  greatly  increased  by  slavery.  The 
best  and  wisest  men  are  not  fit  to  be  trusted  with  irresponsible 
power,  would  be  injured  by  possessing  it.  What  then  must 
be  the  effect  of  granting  such  power  to  a  whole  community, 
of  taking  away  from  a  class  in  it,  so  large  as  to  come  in  con- 
tact with  every  individual,  all  rights  and  all  the  guards  which 
the  law  furnishes  against  selfishness,  passion  and  lust,  even  the 
right'  of  self-defence  ?  What  can  be  the  result  but  a  plentiful 
crop  of  pride,  arrogance,  cruelty,  and  sensuality  ?  How- 
destructive,  too,  to  every  noble  and  humane  feeling  must  be  the 
habit  of  regarding  men  and  women  as  property,  the  daily 
spectacle  of  human  beings,  often  intelligent  and  respectable, 
often  indeed  almost  white,  sold  in  the  market-place,  the  wife 
before  the  eyes  of  her  husband,  the  child  torn  from  its  parent. 
These  things  cannot  be  done  Avith  impunity.  They  degrade 
those  who  do  them.  The  wonder  is,  not  that  the  South  has 
become  what  it  has,  but  that  the  noble  elements  of  the  Saxon 
blood  have  withstood  such  influences  so  long,  that  so  much 
which  is  good  and  w'orthy  is  left  in  the  South.  Take  away 
slavery,  and  the  negro  race  would  be  deprived  of  much  of  its 
fatal  power  over  the  wliite.  The  slave  trader,  the  slave  auc- 
tion, the  slave  hunt,  the  whip  would  disappear.  The  dangers 
of  servile  revolt  would  also  disappear.  The  negro  would  at 
once  become  at  least  safe.  He  is  not  warlike  or  revengeful 
or  ambitious.  He  is  contented  Avith  an  inferior  rank,  because 
it  is  his   true  rank.     The  Abolitionists  could  not,  if  he  had  it, 


SLAVERY.  311 

make  him  dangerous.  No  "incendiary"  lectures,  speeches, 
novels  or  pictures  manufactured  at  the  North,  could  excite 
him.  He  need  no  longer  be  guarded  and  watched.  He  would 
accept  thankfully  his  proper  place.  So  it  has  happened  in 
the  West  Indies.  Millions  were  spent,  before  emancipation,  to 
put  down  insurrection  ;  not  a  dollar  since. 

Another  way  of  diminishing  the  injurious  influence  of  the 
negro  race  would  be  to  elevate  the  character  and  increase  the 
number  of  the  white  laboring  classes.  This  can  only  be  done 
by  furnishing  them  employment.  They  can  have  no  employ- 
ment without  a  demand  for  their  labor.  Why  do  "  mean 
whites"  and  "poor  white  trash"  exist  and  increase  in  the 
South  ?  Because  they  have  no  work.  Therefore,  they  are 
poor  and  ignorant  and  idle.  Give  them  work  and  its  rewards, 
give  them  work  that  stimulates  and  exercises  the  superior 
faculties  of  their  race,  let  them  taste  the  sweet  bread  that  is 
won  by  honest  toil,  and  they  will  prefer  it  to  fishing,  hunting, 
begging  and  stealing  ;  they  will  prefer  decent  raiment  to  rags, 
and  a  comfortable  house  to  a  filthy  hovel.  Why  does  not  the 
white  man  work  ?  Is  it  because  the  negro  is,  by  nature,  more 
intelligent,  more  industrious,  more  skilful  than  the  poor  Saxon 
of  the  South  ?  No,  but  because  the  negro  is  a  slave.  The 
stigma  thus  cast  upon  labor  has  its  influence,  but  the  monopoly 
of  labor,  caused  by  slavery,  has  far  greater  influence.  The 
planter  employs  his  own  people,  because  he  must.  Out  of  his 
fifty,  one  hundred,  or  five  hundred  hands,  he  has  many  who 
are  stupid,  lazy,  stubborn,  worthless.  He  would  discharge 
them  if  they  were  free.  He  has  some  of  his  slaves  educated 
to  be  rude  mechanics,  carpenters,  blacksmiths,  wheelwrights, 
for  plantation  work.  He  lives  as  far  as  he  can  "  within  him- 
self." He  employs  no  white  man  if  he  can  help  it.  He  looks 
with  disfavor  on  the  growth  of  a  respectable,  intelligent,  white 
laboring  class, — naturally  enough,  for  it  Avould  undermine  his 
power.  Destroy  slavery,  and,  like  other  men  of  business,  he 
will  employ  the  best  labor  he  can  find,  the  most  skilful,  the 
most  trustworth3\  The  intelligence  and  energy  of  the  Saxon 
would  thus  come  into  free  competition  with  the  negro,  and 


312  THE    TRIAL    OF    THE    CONSTITUTION. 

gradually  occupy  the  higher  spheres  of  intlustry,  as  they  have 
done  in  the  North. 

By  this  process  labor  would  become  respectable,  would  be 
rewarded,  would  aspire,  would  become  skilful  and  educated. 
The  mechanic  arts  would  be  introduced  and  would  flourish. 
Manufactures  would  arise  and  the  loom  be  brought  where  it 
belongs,  to  the  side  of  the  cotton  crop.  The  South  would  not 
be  dependent  on  Europe  or  the  North  for  all  the  comforts 
and  refinements  of  life,  but  could  have  mills,  machinery  and 
ships  of  her  own,  Avherever  the  climate  permits  the  white  man 
to  work.  He  can  work  throughout  the  Border  Slave  States 
and  in  the  hill  country  of  the  more  Southern  States.  In 
those  regions  the  poor  whites  would  be  redeemed  from  their 
degradation  and  liberated  from  their  slavery.  Free  and  intelli- 
gent labor  would  create  capital,  capital  would  demand  more 
labor,  which  would  come  from  other  places,  and  an  industrious 
and  thriving  white  population  would  thus  be  established,  to 
counteract  the  fatal  tendencies  and  influences  of  Africa. 
Africa  Avould  be  confined  to  narrower  limits,  to  places  wliere 
Africans  alone  can  work.  Should  they  become  too  crowded 
there,  vast  tracts  of  tropical  fertility  a  little  further  south  are 
ready  to  welcome  them,  are  at  this  moment  calling  them. 
The  civilization  of  the  South  may  thus  be  saved,  her  people 
may  thus  hereafter  live  in  an  equal  and  real  Union  with  the 
North. 

It  is  hardly  necessary  to  say  that  such  a  plan  would  satisfy 
the  moral  sentiment  of  the  Northern  people.  A  large  majority 
of  them  were  willing  to  live  under  the  Union  as  it  Avas,  until 
the  war  demonstrated  that  to  be  impossible.  Very  few,  even 
among  the  most  zealous  Abolitionists,  advocated  sudden  eman- 
cipation. They  are  the  supporters  of  a  princij)le,  the  enemies 
of  a  falsehood,  and  their  object  Avould  be  attained.  Abolition- 
ism would  then  have  performed  its  work,  and  would  withdraw 
from  the  scene.  The  only  cause  that  ever  endangered  the 
Union  Avould  be  withdrawn.  The  two  billions  Avould  be  safe. 
It  is  true  that  prospective  billions  Avould  be  lost  to  posterity. 
But  contingent  prospective  billions  do  not  easily  raise  armies 


SLAVERY.  313 

to  fight  for  them,  more  especially  after  the  exhaustion  of  an 
unsuccessful  war. 

But  how  can  such  a  phin  be  executed  ?  Where  is  the  power 
to  adopt  and  carry  it  out?  In  this,  as  in  other  cases  already 
referred  to,  the  weakness  of  the  central  Government,  accordino: 
to  prevailing  opinions,  is  strikingly  manifest.  If  those  opinions 
be  correct,  it  has  no  power  to  save  the  Union  or  to  save  itself. 
Can  Congress  abolish  slavery  in  the  States  ?  No,  say  the 
doctors  of  the  law,  not  even  with  the  consent  of  all  of  them. 
The  thing  must  be  done  by  each  for  itself,  and  by  itself,  or  not 
at  all.  Should  it  be  done  by  the  representatives  of  all  in  Con- 
gress, the  act  would  be  void.  Nay,  it  would  be  void  after  fifty 
years  of  happy  union  produced  by  it,  and  could  be  set  aside, 
as  invalid,  by  the  Legislature  of  a  State,  or  by  a  Federal  court. 
Is  not  the  Constitution  a  finality,  unless  altered  as  directed  by 
itself,  and  is  it  not  to  be  interpreted  by  itself  alone,  without 
reference  to  practice  or  custom,  or  the  consent  of  the  people  ? 

An  opportunity  for  doing  this  great  work  may  be  aiforded 
by  the  Avar,  a  work  which  once  done,  would  re-establish  the 
Union  on  firm  foundations,  and  be  received  with  acclamations 
by  the  whole  people.  But  such  an  opportunity  may  require 
prompt  action,  and  may  not  occur  again.  Fate,  as  Lord  Bacon 
says,  sometimes  presents  to  us  the  handle  of  the  pitcher,  and 
if  we  do  not  seize  it,  afterwards  the  sides,  which  are  hard  to 
clasp. 

"  There  is  a  tide  in  the  affairs  of  men, 
Which  taken  at  the  flood  leads  on  to  fortune  ; 
Omitted,  all  the  voyage  of  their  life 
Is  bound  in  shallows  and  in  miseries." 

The  object  of  this  war  is  to  vindicate  the  authority  of  the 
Government,  and  to  restore  the  Union.  We  expect  to  do  this 
by  victory,  by  victory  over  a  faction,  if  the  rebellion  be  sup- 
ported only  by  a  faction  ;  by  victory  over  the  Southern  people, 
if  it  be  supported  by  the  people.  We  expect  to  reduce  them 
to  submission  by  occupying  their  territory,  their  ports,  their 
cities,  their  rivers  and  railroads,  by  cutting  off  all  the  sourc(?S 
of  their  prosperity.  Let  us  suppose  these  objects  accomplished, 
and  the  Southern  people  tired  of  the  war,  unable  to  resist  and 


314  THE    TRIAL    OF    THE    CONSTITUTION. 

willins  to  come  back  into  the  Union.  Miirht  not  the  Govern- 
ment  say,  "  Shivery  has  proved  itself  the  enemy  of  the  Union, 
inconsistent  with  any  safe  oi*  peaceful  Union.  Come  hack,  but 
on  one  condition, — that  all  children  of  slaves  born  after  the 
4th  of  July  next,  shall  be  free."  A  time  may  come  ^vhen  such 
a  proposition  would  be  accepted,  though  afterwards  it  would  be 
refused.  Shall  we  be  told  that  Congress  has  no  authority  to 
offer  terms  to  a  State,  to  impose  conditions  on  a  State  :  that  if 
the  Southern  States  return  at  all,  they  must  return  with  all 
their  constitutional  rights  ? 

Let  us  suppose,  as  a  result  of  the  Avar,  that  they  do  so  re- 
turn and  resume  their  old  position  in  the  Union  and  in  Con- 
gress. The  calamities  of  the  contest,  the  conviction  that  it 
was  caused  by  slavery,  that  slavery  would  forever  be  the  fruit- 
ful source  of  strife,  if  suffered  to  exist,  might  induce  a  majority 
of  Congress,  including  even  some  of  the  Southern  States,  to 
accept  a  measure  such  as  proposed  above,  if  presented  at  the 
moment  when  such  influences  were  fresh,  and  before  the  in- 
trigues of  party  had  time  to  operate.  But  how  could  Congress 
pass  such  a  law  ?  What  right  have  they  to  control  the  local 
interests  or  institutions  of  the  States  ?  Sovereign  power  over 
these  is  reserved  to  the  States  by  the  Constitution. 

It  seems,  then,  that  the  Government  is  too  weak  to  save  or 
preserve  the  Union,  though  the  reserved  powers  of  the  States 
are  strong  enough  to  destroy  it.  I  have  already  endeavored 
to  show  the  fallacy  of  such  a  doctrine,  and  that  it  is  supported 
neither  by  reason  nor  by  the  Constitution.  Should  such  golden 
opportunities  occur,  it  would  be  the  duty  of  Congress  to  take 
advantage  of  them,  and  thus  restore,  not  the  Union  as  it  was, 
but  one  safer  and  more  desirable,  because  founded  on  truth 
and  not  upon  a  lie.  If  they  doubt  their  power,  let  them  assume 
the  responsibility  and  trust  to  the  peoi)le. 

Nevertheless,  nothing  but  necessity  can  justify  the  exertion 
of  the  ultimate  sovereignty  vested  in  the  Government.  It  is 
intended,  like  the  omnipotence  of  the  English  Parliament,  for 
(Extraordinary  occasions  only.  When  demanded  by  a  great 
emergency,  when  solicited  by  public  opinion,  it  should  be  em- 
ployed.    Even  then,  if  the  proposed  measure  involve  the  fun- 


SLAVERY.  315 

damental  principles  of  the  Government,  resort  should  be  had, 
if  possible,  to  the  process  of  amendment  authorized  bj  the  Fifth 
Article.  Such  a  course  would  silence  factious  opposition,  and 
satisfy  honest  scruples.  It  would  maintain  and  cherish  a 
wholesome  reverence  for  .the  Constitution,  and  tend  to  esta- 
blish it  more  and  more  firmly,  as  time  advances,  on  custom, 
the  only  sure  basis  for  law. 

Slavery  is  permitted  and  protected  by  the  Constitution.  It 
was  a  mistake,  and  we  must  get  rid  of  slavery.  The  j)rinciple 
of  State  power  over  local  interests  was  also  established  by  the 
Constitution.  That  was  no  mistake,  but  is  essential  to  our 
system.  The  Constitution  provides  a  way  by  which  we  can 
get  rid  of  slavery,  without  affecting  the  local  power  of  the 
States.  It  is  not  the  only  way,  as  I  have  endeavored  to  show. 
It  is  not  an  easy  way,  but  on  the  contrary,  intricate  and  diffi- 
cult. But,  if  it  can  be  followed,  it  is  the  best  way,  simply 
because  it  is  the  one  expressly  pointed  out  by  the  Constitution, 
whilst  others  are  impliedly  authorized.  Therefore  we  should 
follow  it  if  we  can. 

The  dimensions  of  this  war  have  become  vast  like  our  country 
and  its  interests.  The  Southern  people  have  displayed  not 
more  courage  and  ability  than  were  expected,  but  greater  power 
and  resources  than  were  expected.  But  the  power  of  the  North, 
the  force  and  will,  the  unity  and  intelligence  of  the  people,  are 
equal  to  the  occasion.  They  may  be  expected  to  be  victorious, 
more  especially  if  the  intervention  of  European  nations  be 
withheld.  The  terms  offered  to  the  rebels  are  very  simple. 
The  Government  says  to  them,  "  Lay  down  your  arms,  submit 
to  the  laws,  send  representatives  to  Congress,  resume  your 
former  position  in  the  Union."  The  stress  of  the  war  may 
force  them  to  this.  Would  it  then  be  impossible  to  obtain  a 
A'ote  of  two-thirds  of  Congress,  to  propose  an  amendment  to 
the  Constitution,  declaring  that  after  a  certain  date  no  slave 
shall  be  born  in  the  United  States  ? 

That  would  depend  on  the  action  of  the  Border  States. 
Eleven  States  out  of  the  thirty-four  would  probably  vote 
against  such  a  proposal,  though  of  these,  Virginia,  Texas  and 
N^orth  Carolina  would  be  doubtful.      Considering   Maryland 


316  THE    TRIAL    OF    THE    CONSTITUTION. 

sure  to  be  in  favor  of  such  a  plan,  and  the  support  of  it  by  the 
North  sure  also,  its  success  would  depend  on  Kentucky  and 
Missouri.  Those  States  are  now  claimed  as  loyal.  The  num- 
ber of  slaves,  and  consequently,  the  value  of  slave  property 
the}^  contain  is  small.  The  persons  directly  interested  in  that 
property  form  a  small  class,  possessing  far  less  influence  than 
the  same  class  further  South,  where  slavery  is  the  supreme 
interest  and  the  supreme  power.  The  soil  of  those  States  can 
be  cultivated  by  white  labor,  and  Avhite  labor  would  introduce 
diversified  industry,  and  speedily  make  them  rival  their  pros- 
perous neighbors  in  the  North.  Slavery  must  ere  long  disap- 
pear from  the  Border  States,  and  the  people  know  it.  They 
know  also  that  it  Avould  be  a  good  thing  for  it  to  disappear. 
Because  of  slavery,  Kentucky  and  Missouri  have  been  devas- 
tated by  war.  After  the  lesson  of  such  experience,  a  plan 
that  would  respect  existing  interests  and  social  organization, 
that  would  not  violate  State  rights,  real  or  fancied,  or  shock 
State  pride,  and  that  would  but  hasten  an  inevitable,  antici- 
pated and  desired  future,  would  appeal  strongly  to  the  intelli- 
gence of  the  people. 

The  plan  would  find  many  advocates  even  in  the  more 
Southern  States.  There  Avas  in  them  a  large  Union  party 
before  the  war.  A  large  portion  of  their  people  are  not  slave- 
owners, and  care  nothing  for  slavery  except  as  marking  the 
distinction  of  race.  The  inhabitants  of  the  hill  country  are 
averse  to  slavery.  The  cause  of  secession  found  supporters 
among  these  classes,  because  of  the  idea,  industriously  circulated 
by  political  leaders,  that  slavery  was  threatened  with  unjust  and 
illegal  attack ;  that  the  rights  of  the  South  had  been  violated. 
Menaced  coercion  caused  irritation,  and  then  actual  war  kin- 
dled the  passions  that  always  accompany  war,  and  swept  the 
masses  into  the  current,  to  which  direction  had  been  given  by 
these  leaders.  Even  now,  there  is  reason  to  believe  that  the 
ranks  of  the  rebellion  have  been  filled  to  a  great  extent  by 
force  and  terror,  the  SAvay  of  a  dominant  opinion,  and  ihe 
power  of  a  military  government.  When  peace  is  restored, 
these  causes  will  cease  to  operate.  A  contest  in  which  mili- 
tary renown  has  been   gained,  and  valor   displayed  by  both 


SLAVERY.  317 

parties,  does  not  leave  behind  it  animosities  that  cannot  be 
reconciled,  more  especially  if  it  leaves  common  interests  to  be 
secured.  It  cannot  be  expected,  indeed,  that  the  Cotton 
States,  should  they  be  restored  to  the  Union,  would  consent 
to  any  plan  of  emancipation,  hoAvever  moderate,  but  there  is 
ground  for  hope,  that  if  one  Avere  proposed,  not  as  a  trophy  of 
victory,  not  revengeful  nor  oppressive,  they  -would  not  resist 
it  by  another  war. 

Should  some  such  plan  as  that  suggested  be  adopted,  it 
would  be  a  signal  and  glorious  triumph  of  reason,  of  humanity 
and  of  free  government.  With  slavery  Avithdrawn  from  our 
politics,  which  it  can  never  be  unless  withdraAvn  from  our  Con- 
stitution, Avith  a  real  Union  founded  on  the  basis  of  truth  and 
justice,  Avhat  limits  could  be  assigned  to  the  poAver,  the 
grandeur,  the  happiness  of  this  republican  empire  of  the 
Saxon  race  ! 

This  Avar  is  groAving  into  formidable  dimensions.  The  two 
billlions  make  a  desperate  fight.  But  truth,  humanity  and 
the  Avorld's  opinion  are  arra^^ed  against  them,  and  these  are 
stronger  than  cotton.  The  two  billions  cannot  muster  armies 
enouo-h  to  defend  a  lie.  The  Gods  have  not  abdicated  their 
heavenly  thrones.  Either  violently  in  the  midst  of  the  Avar, 
or  peacefully  as  a  consequence  of  the  Avar,  the  untruth  in  our 
Constitution  is  doomed  to  perish.  This  Avar  is  the  death- 
struggle  of  slavery.  It  may  prove  the  birth-struggle  of  a  ncAV 
Union. 


318  THE    TRIAL    OF    THE    CONSTITUTION. 


CHAPTER    V. 


DEMOCRACY. 


In  our  day,  the  word  democracy  is  generally  understood 
to  mean  a  representative  Government,  elected  by  equal  and 
universal  suftVage,  and  it  is  usual  to  call  ours  a  Democracy. 
Whatever,  by  reason  of  inherent  tendencies,  it  may  have  in 
effect  become,  there  is  no  democracy  in  the  Constitution.  It 
says  not  a  word  about  universal  su3"rage,  but  on  the  contrary, 
expressly  provides  against  its  application  to  any  department 
of  the  Government,  except  one  branch  of  the  Legislature,  and 
to  that  it  does  not  enjoin,  but  permits  its  application.  The 
President  according  to  the  Constitution  is  to  be  chosen,  not 
by  a  vote  of  the  people,  but  by  an  Electoral  College,  which 
shall  be  appointed  "  by  each  State,  in  such  manner  as  the 
Legislature  thereof  may  direct."  The  Judiciary  is  appointed 
by  the  President  and  Senate,  and  the  Judges  hold  their  offices 
during  good  behavior.  The  people  have  no  control  over  them 
whatever.  The  Senate  is  chosen  by  the  Legislatures  of  the 
States,  and  represents  the  States,  not  the  people.  The  choice 
of  the  House  of  Representatives  alone  is  by  the  Constitution 
referred  to  the  people,  and  it  provides  that  those  who  vote  for 
it  "  shall  have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  State  Legislatures."    • 

When  the  Constitution  was  made,  these  qualifications  varied 
in  the  different  States.  In  many  of  them  a  certain  amount  of 
property  was  necessary  to  entitle  a  man  to  vote,  and  this  last 
vestige  of  conservatism  may,  perhaps,  exist  in  some  of  them 
now.  Such  a  condition,  or  any  other,  may  be  imposed  on  the 
right  of  suffrage  hereafter  at  the  pleasure  of  the  States ;  and 
should  the  Union  be  restored,  the  Southern  States  will  very 
probably  exercise  this  privilege,  so  that  the  Government  may 


DEMOCRACY.  319 

be  subjected  to  democratic  influences  from  one  part  of  the 
country,  and  to  aristocratic  or  oligarchic  from  another.  This, 
indeed,  has  ah*eady  happened,  and  with  most  pernicious  results. 
The  Southern  States,  more  especially  the  Cotton  States,  are 
really  aristocracies  and  oligarchies,  with  all  the  evil  and  few 
of  the  good  features  of  such  forms  of  government.  The  go- 
verning class  is  not  a  nobility,  with  the  superior  culture  and 
sentiment  that  accompany  high  birth.  It  is  not  founded  on 
hereditary  landed  property,  the  essential  element  of  an  aris- 
tocracy, connecting  it  with  the  past  and  with  the  future,  creat- 
ing permanent  wealth,  independence  of  character,  freedom  of 
thought,  local  attachments  and  the  love  of  stability  and  social 
order. 

Being  without  the  law  or  custom  of  primogeniture,  estates 
are  divided  by  each  generation,  and  old  families  decay,  but 
retain  their  pride  and  aversion  to  active  industry  and  useful 
pursuits.  The  distinguishing  feature  of  Southern  aristocracy, 
however,  is  not  land,  inherited  or  purchased,  but  negro  slaves, 
either  inherited  or  purchased ;  and  its  connection  with  these  is 
not  the  humane  relation  of  the  old  baron  to  his  vassals,  or  of 
the  modern  English  lord  to  his  tenantry  and  peasantry,  or 
even  of  the  Russian  noble  to  his  serfs,  who  have  personal 
rights  and  a  vested  interest  in  the  soil.  The  high  moral  influ- 
ences of  entire  or  qualified  freedom  of  the  inferior  classes,  and 
the  sj'mpathies  created  by  a  common  country,  and  government 
and  race,  are  controlling  and  beneficial  elements  in  all  these 
cases.  The  dependents  of  the  Southern  planter  are  slaves ; 
they  are  of  an  inferior  race,  separated  from  his  own  by  wide 
gulfs  of  disparity  ;  they  are  not  his  countrymen  ;  the  law  does 
not  even  class  them  as  men  ;  they  have  no  countrj",  no  govern- 
ment, no  laws,  no  rights ;  they  are  property,  and  wholly  sub- 
jected to  his  arbitrary  power.  Because  slavery  and  the  negro 
have  prevented  the  growth  of  manufactures,  commerce,  the 
mechanic  arts  and  educated  industry,  earning  comfort  and 
commanding  respect,  and  have  thus  thrown  all  wealth  into  the 
hands  of  the  planters,  they  practically  control  the  politics  of 
the  South.  Practically,  because  there  is  no  class  to  oppose 
them,  but  not  legally.     Theoretically,  they  are  the  fellow-citi- 


320  THE    TRIAL    OF    THE    CONSTITUTION. 

zens  of  the  "  poor  "vvliitos,"  "wlio  seem  to  be  regarded  as  a  caste 
lower  even  than  the  shave.  Any  one  can  be  a  phmter,  hoAvever 
vulgar,  coarse  and  ignorant,  Avho  has  money  to  buy  land  and 
negroes. 

This  practical  aristocracy,  therefore,  is  subjected  to  no  in- 
fluences to  secure  high  qualifications  for  the  responsible  duties 
of  government ;  and  as  it  has  no  legal  rights  as  a  governing 
body,  it  has  no  legal  duties,  and  therefore  no  responsibility. 
For  these  reasons,  its  sole  rule  of  action  is  likely  to  be  its 
own  exclusive  interest.  Such  a  Government  Avants  the  aristo- 
cratic element,  is  a  mere  oligarchy,  controlled  by  narrow  views 
and  sordid  motives,  and  is  incapable  of  liberal  desires  for  the 
improvement  of  society  or  of  the  spirit  of  nationality.  It  will 
almost  of  necessity  sacrifice  all  other  classes  to  its  own,  and 
the  whole  country  to  its  own  section.  To  speak,  therefore,  of 
the  Southern  slaveholders  as  an  aristocracy  in  the  European 
sense,  implying  hereditary  wealth,  refinement,  high  culture, 
legal  position,  political  power  and  duty,  coupled  with  responsi- 
bility, love  of  country  and  interest  in  its  general  prosperity, 
or  as  a  bright  conservative  land  of  traditions  and  manners, 
connecting  the  past  with  the  future,  is  a  manifest  absurdity. 
There  is  no  resemblance  between  them  and  any  past  or  pre- 
sent aristocracy  of  Europe,  except  that  they,  of  necessity, 
possess  most  of  the  vices  and  evil  tendencies  attributed  to  the 
worst. 

It  is  not  intended  here  to  disparage  the  character  of  the 
Southern  slaveholders,  but  to  speak  of  their  necessary  quali- 
ties as  a  governing  class.  A  Southern  gentleman,  a  Southern 
lady,  warm-hearted,  impulsive,  high-spirited  and  refined  have 
been  always  appreciated  and  welcomed  in  the  North.  To  their 
influence,  indeed,  much  of  the  power  of  slavery  over  Northern 
opinion  may  be  attributed.  Noble  traits  of  heart  and  mind, 
elegance  and  grace,  are  of  a  nature  to  have  spectators,  and 
thus  win  and  conquer  Avhercver  they  appear.  But  a  reputa- 
tion lingers  sometimes  after  the  substance  out  of  which  it  grew 
has  disappeared.  There  are  not  so  many  Southern  gentlemen 
and  Southern  ladies  now  as  formerly.  Half  a  century  or  more 
ago,  the  Southern  planters  in  their  tastes,  habits,  sentiments 


DEMOCRACY.  321 

and  manners,  as  "well  as  in  their  social  position,  bore  much  re- 
semblance to  the  English  country  gentleman,  that  favorite  of 
history  and  romance.  They  had  wealth,  leisure,  independence, 
opportunity  and  inducement  for  mental  culture,  the  salutary 
retirement  of  the  farm  and  plantation,  the  means  for  generous 
hospitality,  field  sports  and  the  wholesome  physical  and  moral 
influences,  which  mother  earth  exerts  upon  her  lovers  and  ser- 
vants. They  were  owners,  generally  hereditary  owners,  of  the 
soil,  the  only  possible  foundation  for  a  real  gentry  or  aristoc- 
racy. But  the  subdivision  of  property,  and  the  pernicious 
influence  of  slavery,  have  told  upon  Southern  society.  The  old 
estates  have  been  broken  up,  the  old  names  have  disappeared 
or  are  rapidly  fading  away.  When  wealth  goes,  culture  and 
refinement,  after  a  time,  go  Avith  it,  and  are  not  restored  by  an 
upstart  growth  of  newly  made  wealth.  Cotton,  meanwhile, 
has  given  hideous  prominence  to  the  sordid  element  of  slavery. 
In  thought  and  practice,  slaves  have  been  for  many  years  re- 
garded more  in  the  light  of  property  than  before,  because  they 
have  become  five  times  more  valuable ;  and  whilst  this  merce- 
nary spirit  has  been  stimulated  into  a  noxious  growth  in  the 
planting  States,  cotton  has  created  the  business  of  slave-breed- 
ing in  the  border  States. 

No  gentry  can  withstand  'such  influences.  It  must  soon 
cease  to  be  a  gentry;  and  when  it  falls,  upon  what  can  it 
fall,  and  what  can  it  become  in  the  South  ?  Work  it  cannot, 
for  there  is  no  work  to  be  done.  The  South  has  neither  trade 
nor  manufactures,  nor  the  mechanic  arts  to  afibrd  worthy  and 
sufiicient  employment  to  men  of  education.  Where  these  are 
wanting,  the  ranks  of  the  professions  are  soon  filled  to  reple- 
tion. Small  planters,  living  on  fragments  of  a  patrimonial 
estate,  must  be  poor  ;  therefore  must  become  deficient  in  men- 
tal culture  and  refinement  of  manners.  The  large  planters 
are  new  men,  more  especially  in  the  Southwest,  to  which  the 
sceptre  has  departed  from  the  Atlantic  States.  What,  then, 
has  become  of  the  gentry  ?  It  has  almost  disappeared.  It 
is  no  longer  a  land  and  slave  owner.  It  is  selling  cotton  on 
commission  in  the  cities ;  it  is  practising  law  and  medicine  in 
towns  and  wretched  villages,  or  in  half  civilized,  half  wild,  or 

21 


322  THE    TRIAL    OF    THE     CONSTITUTION. 

half  Avaste  deserts  of  the  interior.  Before  the  war  it  croAvded 
into  the  army  and  navy  and  bureaus  at  Wasliington ;  it  has 
emigrated,  and  sought  and  found  honorable  employment  in 
the  echoing  paths  of  enterprise  and  industry  of  the  North ; 
or  it  is  hanging  round  taverns,  billiard-rooms,  cock-pits,  and 
race-courses  in  the  South,  shabby  and  fine,  proud,  ignorant, 
and  idle.  It  is  no  longer  governing  the  South,  or  cultivating 
its  soil.  It  is  no  longer  sending  Pinckneys,  Rutledges, 
Haynes,  Draytons,  Calhouns,  Randolphs,  and  Prestons  to 
Congress,  but  Wigfiills  and  Slidells  instead.  It  is  no  longer 
spreading  bountiful  tables,  and  presiding  over  elegant  festivi- 
ties in  old  homesteads,  for  the  old  homesteads  are  falling  to 
pieces  for  Avant  of  broad  acres  to  sustain  them.  The  gentry 
no  longer  exists,  for  the  traces  left  in  the  Atlantic  States 
have  no  real  influence.  But  land-owners  and  slave-owners, — 
that  is  to  say,  speculators  in  land  and  negroes,  who  have 
bought  them  to  make  money, — do  exist ;  and  they  bear  far 
more  resemblance  to  Wall  Street  speculators  in  stocks,  than 
to  a  class  of  country  gentlemen.  Nevertheless,  they  now  rule 
the  South,  and  have  made  war  upon  the  Government  because 
they  cannot  rule  the  nation.  It  is  a  mistake,  therefore,  to 
call  the  South  an  aristocracy,  as  is  often  done.  That  title  it 
no  longer  merits.  It  is  now  far  more  of  an  oligarchy,  or  a 
government  of  the  rich, — no  matter  how  they  became  rich, — 
and  who  therefore  are  not,  because  of  their  wealth,  educated, 
refined,  or  elevated  above  the  habitual  influence  of  sordid  and 
vulgar  passions. 

Now,  it  has  happened  that  the  Government  of  this  country 
has  been,  with  short  intervals,  from  the  beginning  under  the 
control  either  of  the  Southern  aristocracy,  or  its  successor, 
the  Southern  oligarchy.  T'he  power  and  wealth  of  both  have 
been  founded  on  the  ownership  of  negroes,  and  the  number 
of  owners  has  never  exceeded  three  hundred  and  fifty  thou- 
sand ;  or,  making  a  fair  allowance  for  those  directly  interested 
in  such  ownership  as  members  of  a  family,  a  million  of  the 
Southern  people,  out  of  a  population  of  ten  or  twelve  millions. 
There  is  nothing  in  our  Constitution  to  forbid  or  prevent  this 
aristocratic  or  oligarchic  influence.     On  the  contrary,  it  may 


DEMOCRACY.  323 

be  constitutionally  changed  by  the  Southern  States  into  a 
legal,  instead  of  a  practical  power,  arising  out  of  the  ascend- 
ency of  a  class.  The  suffrage  may  be  restricted  to  the 
owners  of  slaves,  and  the  whole  South  be  converted  into  an 
oligarchy  of  the  narrowest  character,  at  the  pleasure  of  the 
Southern  States ;  and  by  such  limited  suifrage  the  President 
and  Congress,  the  House  of  Representatives  directly,  and  the 
Senate  indirectly,  would  be  elected. 

Democracy,  therefore,  is  not  in  the  Constitution.  The 
direct  action  of  universal  suffi'age  is  indeed  expressly  pro- 
hibited, except  upon  the  House  of  Representatives,  and  both 
that  body  and  the  Senate,  and  the  President, — the  whole 
Government  in  short,  except  the  Judiciary,  may,  at  the  plea- 
sure of  the  States,  be  controlled  by  influences  the  very  oppo- 
site of  democracy. 

Whilst  in  the  South  the  predominance  of  an  aristocratic 
element  has  degenerated  into  the  sway  of  an  oligarchy,  the 
power  of  democracy  has  steadily  increased  in  the  North.  It 
has  abolished  all  restrictions  on  the  right  of  suffrage ;  it  has, 
in  most  of  the  States,  seized  even  upon  the  Judiciary ;  and  it 
has  applied  the  ballot-box  also  to  the  appointment  of  sheriffs, 
prothonotaries,  justices  of  the  peace,  constables,  and  a  multi- 
tude of  other  petty  officers,  so  that  the  masses  exercise  a 
control  over  public  aff'airs  as  absolute  as  is  consistent  with  the 
existence  of  a  representative  government.  Equal  and  univer- 
sal suff'rao-e,  thus  dominant  in  the  Northern  States,  elects  the 

CD      ^  ' 

House  of  Representatives  and  the  President.  There  is  no 
supreme  interest  or  governing  class  in  the  North ;  none  who 
are  tempted  by  any  motive  to  make  an  eff"ort  to  govern. 
Property  is  so  generally  diff'used  that  all  are  interested  in  its 
protection ;  and  though  there  are  many  rich  men,  there  is  no 
permanently  rich  class.  Hereditary  wealth  is  rare,  and  con- 
fers no  influence  social  or  political.  Land  is  generally  divided 
into  small  farms ;  activity  and  enterprise,  stimulated  by  the 
rapid  development  of  the  country,  are  constantly  bringing 
forward  new  men  into  the  upper  ranks,  whilst  those  who  have 
inherited  education  and  a  position,  but  not  fortune,  easily  find 
a  sphere  of  honorable  and  profitable  activity. 


324  THE    TRIAL    OF    THE    CONSTITUTION. 

Out  of  the  large  cities  there  is  nothing  that  can  be  called  a 
mob.  Throughout  the  vast  farming  regions  of  the  interior, 
though  great  wealth  is  not  uncommon,  moderate  competence 
and  universal  plenty  prevail ;  and  with  them  a  happy  and 
generous  equality  of  manners,  in  which  social  superiorities  are 
recognized,  without  servility  on  the  one  side  or  condescension 
on  the  other.  Education  also  is  general  throughout  the  North. 
It  is  impossible  to  say  that  any  class,  as  such,  is  ignorant. 
Whilst  mental  culture  of  a  high  order  is  rare,  it  is  almost 
equally  rare  among  rich  and  poor ;  and  the  standard  of  intel- 
ligence among  the  masses  is  elevated.  They  participate,  by 
means  of  the  press,  in  the  action  of  the  Government,  and  the 
great  movements  of  the  world's  rushing  thought.  Ideas  now 
are  winged  by  steam,  and  fly  across  mountains  and  the  Avilder- 
ness  into  every  remote  nook  of  the  country,  and  there  find 
minds  and  hearts  ready  to  receive  them.  The  present  war 
has  displayed  the  wondrous  power  of  the  railroad  and  the 
telegraph  to  enable  a  people  to  think  simultaneously ;  and  has 
showed,  also,  what  a  people  able  to  think  can  do. 

There  is  neither  an  educated,  nor  rich,  nor  poor,  nor  igno- 
rant class  in  the  North  ;  though  there  are  poverty  and  wealth, 
knoAvledge  and  ignorance.  These  are  constantly  changing 
their  subjects,  and  social  distinctions  are  plainly  though  not 
sharply  defined  or  separated  by  steep  contrasts  and  difficult 
barriers.  A  general  equality  of  condition,  desire  for  material 
well-being,  love  of  home  and  domestic  enjoyments,  of  industry 
and  its  rewards,  and  consequently  moral  elevation  and  mild- 
ness of  manners,  are  the  characteristics  of  Northern  society. 

One  might  think  that  the  two  sections  of  the  country, 
inhabited  by  a  people  thus  constituted,  would  each  find  its 
complement  in  the  other.  That  as  the  cotton-fields  of  the 
Soutli,  the  grain-fields  of  the  West,  the  mills  and  workshops 
of  the  East,  supplied  mutual  wants,  so  the  conservative  ele- 
ment of  Southern  society  would  give  moderation  and  stability 
to  Northern  democracy,  Avhich,  in  return,  would  impart  some- 
thing of  its  own  spirit  of  movement  and  progress  to  the  aristo- 
cratic and  oligarchic  tendencies  of  the  South.  So  it  hap- 
pened till  a  recent  period  of  our  history.     But  action  and 


DEMOCRACY.  325 

reaction,  centrifugal  and  centripetal  force,  must  be  nicely 
adjusted  to  produce  harniori}^  and  order,  both  in  the  moral 
and  material  Avorld.  Should  either  predominate,  confusion 
and  the  crash  of  collision  are  inevitable.  Under  the  free 
scope  left  by  the  Constitution  to  the  elements  of  Southern 
and  Northern  society,  slavery  first  caused  discontent,  which 
ripened  into  discord,  and  that  at  length  has  reached  the  point 
of  open  and  destructive  war. 

The  Constitution  has  failed  to  prevent  this  war.  It  left  the 
Government  open  to  the  action  of  the  causes  that  pi'oduced 
the  terrible  conflict  which  is  now  covering  with  blood  and  tears 
and  desolation  some  of  the  fairest  regions  of  our  country,  and 
which  involves  no  less  a  stake  than  the  life  of  tlie  nation  and 
the  hopes  of  the  future.  The  Constitution  is  neither  an  aris- 
tocracy nor  a  democracy,  and  makes  no  provision  whatever 
against  the  selfish  and  exclusive  spirit  of  the  one  or  the  wild 
license,  the  reckless  passion  and  the  blind  folly  of  the  other. 
Whatever  checks  are  to  be  imposed  upon  either  must  be  im- 
posed by  the  people  of  the  States,  that  is  to  say,  must  be  im- 
posed by  the  people  upon  themselves  or  else  by  disastrous 
events  leading  to  violent  revolution.  It  is  expecting  much 
from  an  oligarchy  to  hope  that  it  will  deny  its  nature  and  re- 
gard other  interests  than  its  own.  It  is  expecting  much  from 
the  masses  of  the  people,  that  they  will  voluntarily  put  re- 
straints upon  power,  the  free  exercise  of  which  they  have  once 
enjoyed.  Is  it  expecting  too  much  ?  Upon  the  decision  of 
that  question  the  fate  of  this  Government  depends. 

No  one  will  deny  that  our  present  troubles  grew  out  of  the 
antagonism  between  the  North  and  the  South  ;  but  as  is  usual 
in  such  cases,  neither  side  is  willing  to  take  on  itself  the 
blame.  One  party  says  that  Abolitionism,  the  other,  that 
slavery  was  the  cause  of  the  war.  They  are  right  thus  far, 
each  was  a  cause  ;  neither  was  the  sole  cause.  It  is  very  true 
that  if  the  Northern  people  had  yielded  to  all  the  demands  of 
the  South,  or  if  the  Southern  people  had  been  willing  to  abo- 
lish slavery,  or  to  impose  upon  it  such  restraints  as  Northern 
sentiment  required,  there  would  have  been  no  Avar.  But 
neither  party  would  or  could  yield  to  the  extreme  views  and 


326  THE    TRIAL     OF    THE     CONSTITUTION. 

claims  of  tlic  other.  Between  those,  ho-\vever,  there  was  a 
safe  path  for  both,  tlie  path  of  mutual  forbearance  and  con- 
cession, traced  out  in  the  Missouri  Compromise  by  judicious 
men,  when  the  same  question  was  agitated  before.  That  com- 
promise may  be  regarded  as  the  expression  of  the  general  sen- 
timent of  the  country  when  the  action  of  South  and  North  on 
each  other  was  safe  and  mutually  beneficial.  It  gave  us  peace 
for  nearly  half  a  century.  It  was  sustained  by  the  opinion  of 
the  whole  country.  It  was  a  solemn  compact  or  bill  of  rights 
between  North  and  South,  made  for  the  sake  of  peace  ;  and 
had  it  been  kept,  peace,  because  of  slavery,  might  never  have 
been  broken.  But  it  was  not  kept.  It  was  violated  by 
Northern  Democrats  for  the  purpose  of  conciliating  the  South. 
The  ill  deed  took  the  country  by  surprise.  No  warning  had 
been  given,  no  expression  of  popular  opinion  from  North  or 
South  had  called  for  such  a  step.  But  suddenly  this  law, 
Avhich  was  more  than  a  law,  a  compact  of  union  and  friendship, 
was  set  aside  by  political  managers,  and  all  sectional  and  party 
passions  were  roused  from  their  long  repose  and  summoned  to 
deadly  strife.  These  furies  obeyed  the  call,  and  we  are  now 
in  the  midst  of  the  results, — battle-fields  soaked  in  brothers' 
blood  and  daily  telegrams  of  slaughter. 

The  repeal  of  the  Missouri  Compromise  indicated  a  change 
in  the  moral  condition  of  the  country.  The  governing  class 
in  the  South  had  degenerated,  as  already  stated,  into  an  oli- 
garchy. It  had  lost  the  spirit  of  nationality  and  become  ex- 
clusive and  sectional,  wholly  devoted  to  Southern  interests  and 
objects.  Northern  politics  had  become  corrupt.  The  quad- 
rennial game  of  chance,  called  the  election  of  a  President  and 
the  abuse  of  Executive  patronage,  had  rendered  public  life 
more  a  money-making  pursuit  than  a  career  of  honorable  am- 
bition. The  Southern  leaders  of  party  joined  in  this  game 
Avith  feelings  less  personal  than  those  of  their  Northern  friends. 
They  had  a  real  interest  to  protect  from  threatened  attack. 
They  were  determined  to  govern  the  country,  because  they 
feared  that  if  they  did  not,  their  section  would  be  governed  by 
their  enemies.  The  Northern  people  had  no  vital  interest 
immediately  at  stake.     The  great  majority  cared  little  about 


DEMOCRACY.  327 

a  tariff,  and  acquiesced  in  slavery.  The  fanaticism  of  the 
Abolitionists  did  not  reach  them.  It  was  impossible  to  excite 
them  about  a  moral  sentiment  which  touched  neither  their 
material  well-being  nor  their  passions.  When  the  people  are 
not  excited,  parties  are  easily  controlled  by  politicians.  The 
leaders  of  the  Democratic  party,  needed  the  help  of  the  South,  to 
give  them  office  and  power.  The  people  of  the  South  needed 
the  Democratic  party  to  defend  them  against  the  dreaded 
strength  of  the  Abolitionists.  Both  counted  on  the  cohesive 
power  of  party-spirit,  the  love  of  victory,  the  habit  of  acting 
together  and  the  disciplined  organization  of  the  Northern 
Democracy. 

They  were  right  so  far  as  slavery  was  concerned.  It  was 
protected,  not  only  by  the  Democratic  party,  but  by  the  apa- 
thy of  the  great  majority  of  the  Northern  people,  combined 
with  their  good  will  for  the  South  and  love  for  the  Union. 
Slavery  would  have  been  safe  had  the  Missouri  Compromise 
been  respected.  Even  its  repeal  excited  but  little  interest  in 
the  North,  because  the  results  w^ere  not  obvious  or  immediate. 
Its  avowed  object,  to  permit  slavery  to  go  wdiere  the  people  of 
the  Territories  wished  to  have  it,  did  not  seem  dangerous  or 
unjust.  There  was  nothing  in  such  a  purpose  or  result  to 
offend  the  Northern  masses,  certainly  nothing  to  endanger  the 
ancient  alliance  between  the  South  and  the  Democratic  party. 
But  when  it  appeared  that  the  real  design  of  the  measure  was 
to  force  slavery  into  the  Territories,  where  the  people  did  not 
want  it,  where  they  earnestly  protested  against  it,  the  case 
was  altered.  The  vital  principle  of  American  liberty  was  as- 
sailed, the  most  sensitive  and  passionate  instinct  of  the  Saxon 
heart  was  revolted,  Democracy  itself  was  contradicted  and  in- 
sulted. Was  it  for  this,  then,  that  a  fair  and  honorable  com- 
pact had  been  broken,  and  a  great  measure,  designed  and  per- 
fected by  the  patriotic  labors  of  wise  men,  to  promote  union 
and  peace,  and  sanctioned  by  time  and  success,  had  been  set 
aside  by  demagogues  ?  Slavery  instantly  vanished  from  the 
contest,  or  was  only  thought  of  as  the  abhorred  cause  of  a 
base  bargain  and  a  gross  injustice.  The  pulses  of  the  North 
began  to  beat.      The  people  were  summoned  from  industry  and 


328  THE     TRIAL     OF     THE    CONSTITUTION. 

business  to  the  contests  of  parties,  else  scarcely  heeded. 
When  in  rapid  succession  followed  the  violence  and  fraud,  the 
scenes  of  bloodshed  and  tyranny  in  Kansas,  and  finally  the 
monstrous  outrage  of  the  Lecompton  Constitution,  the  ranks 
of  the  Democracy  wavered  and  broke,  deserted  by  the  best 
portion  of  it,  Avho  preferred  justice,  liberty  and  their  country 
to  party  ties.  Then  followed  the  election  of  Mr.  Lincoln, 
which  was  the  protest  of  Northern  sentiment  against  Southern 
dictation  and  Southern  crime,  not  against  slavery.  And  soon 
after,  when  the  South  made  Avar  on  the  Government,  America 
displayed  the  sublime  spectacle  of  the  uprising  of  a  great 
nation,  the  unanimous  and  passionate  rally  of  the  people 
around  their  flag. 

Now,  the  question  is,  why  were  these  things  done  ?  It  is  in 
no  sense  a  party  question,  but  is  connected  with  principles  of 
our  Government  and  elements  in  the  character  of  our  people 
that  command  the  future.  The  motives  of  the  Southern 
people,  and  the  reason  why  those  motives  were  free  to  govern 
their  action,  have  been  already  ejQDlained.  But  they  could 
have  done  nothing;  without  the  consent  and  aid  of  the  Demo- 
cratic  party.  It  was  in  the  power  of  that  party  to  say  to  the 
South,  at  any  step  in  the  progress  towards  war,  even  the  last, 
"  Thus  far  shalt  thou  go  and  no  fiirther."  Had  the  Missouri 
Compromise  not  been  repealed,  there  would  have  been  no 
war.  Had  the  successful  attempt  to  elect  a  Legislature  for 
Kansas,  by  force,  not  been  adopted  by  the  Democratic  party 
and  its  President  as  a  party  measure,  there  would  have  been 
no  war.  Had  the  Government  repudiated  the  abominable 
laws  passed  by  that  Legislature,  instead  of  using  military 
force  to  execute  them,  there  would  have  been  no  Avar.  Had 
a  Democratic  President  recommended  the  rejection  of  the  in- 
famous Lecompton  Constitution,  instead  of  attempting  to  force 
it  upon  the  Kansas  people,  there  Avould  have  been  no  Avar. 
When  Mr.  Lincoln  Avas  elected,  and  the  Southern  people  Avere 
threatening  disunion  and  preparing  for  it,  had  they  received, 
not  sympathy,  but  rebuke,  from  Northern  Democrats  and  a 
Northern  President,  there  Avould  have  been  no  war.  When, 
at  length,  rebellion  declared  itself  by  action,  and  the  Southern 


DEMOCRACY.  329 

leaders  began  to  enlist  troops,  and  to  seize  on  the  forts,  arsenals 
and  navy  yards  of  the  Government,  liad  a  Democratic  Presi- 
dent used,  Avith  prompt  vigor,  the  force  at  his  disposal,  and 
called  on  the  Northern  people  to  support  him  in  defence  of 
the  (T0\-ernment,  the  rebellion  would  have  been  checked  and 
quelled  ere  it  became  dangerous.  So  that  from  the  begin- 
ning, as  the  leaders  of  the  Democratic  party  had  absolute 
control  over  the  causes  that  produced  the  war,  it  may  be  re- 
garded as  their  Avork.  They  united  Avith  the  South  in  every 
step  of  its  mad  career,  until  the  cannon  of  Fort  Sumter  broke 
the  spell,  and  revealed  to  them  the  surprising  fact  that  Demo- 
crats were,  after  all,  Americans,  and  that  the  best  and  most 
numerous  portion  of  them  had  deserted  the  party  for  their 
countr}^ 

Was  it  to  protect  slavery  that  Northern  Democrats  sustained 
the  South  in  all  its  extravagant  demands  ?  None  knew  better 
than  they  that  slavery  was  perfectly  safe,  whatever  the  alarmed 
and  exasperated  Southern  people  might  think,  or  be  deluded 
into  imagining,  of  the  power  of  the  Abolitionists.  Politicians 
are  experts  in  counting  votes,  and  their  business  requires  them 
to  be  learned  in  the  statistics  of  popular  opinion.  The  Demo- 
cratic leaders,  therefore,  were  well  aware  that  the  Abolitionists, 
as  a  political  party,  had  no  power,  and  that  the  great  mass  of 
the  Northern  people  w-ere  Avilling,  not  to  attack  slavery,  but 
to  defend  it  in  all  its  legal  rights.  But  if  slavery  w  as  menaced 
by  any  party  in  the  North,  liberty  and  justice  were  assailed 
in  Kansas  for  the  sake  of  slavery,  and  the  Southern  Demo- 
crats distinctly  threatened  to  destroy  the  Union  if  a  Northern 
candidate  was  elected  President.  That  declaration  did  not 
break  up  their  connection  with  their  Northern  allies.  It  pro- 
duced, indeed,  a  division  in  the  party,  but  the  extreme  South- 
ern section  of  it  had  a  powerful  support,  in  the  North,  at  the 
election  which  closed  Avith  the  triumph  of  Mr.  Lincoln,  and  up 
to  the  beginning  of  the  Avar,  and  indeed  still  has  sympathizers 
and  Avell-Avishers  in  the  North,  although,  Avith  its  candidate  in 
that  election,  it  is  now  in  arms  against  the  Union. 

These  are  remarkable  facts.  It  is  easy  to  understand  how 
the  Southern  oligarchy,  Avith  their  one  interest  and  one  insti- 


330  THE    TRIAL    OF    THE    CONSTITUTION. 

tution,  on  AvliicU  all  that  tliej  liavo  and  all  that  they  are  de- 
pend, should  be  roused  to  passionate  and  reckless  eftbrts  to 
resist  any  attack  on  slavery,  so  vulnerable  to  opinion,  and 
that  they  should  be  incensed  at  the  reproach  which  such  at- 
tacks imply.  But  there  is  no  slavery  in  the  North.  There 
are  no  great  interests  in  the  North  menaced  by  the  Abolition- 
ists, except,  indeed,  manufactures  and  trade,  which  are  not 
members  of  the  Democratic  party.  The  Missouri  Compromise 
certainly  did  not  injure  the  North.  No  Government  ever 
pressed  more  lightly  upon  the  people  than  ours,  or  made  itself 
felt  so  entirely  by  benefits,  and  not  by  burdens,  as  ours.  No 
one  feared  that  it  would  or  could,  even  in  the  hands  of  a 
"Black  Republican"  candidate,  oppress  or  injure  any  class  in 
the  North.  The  Union  has  surely  been  an  unmixed  blessing 
to  the  North,  Avhatever  may  be  thought  of  it  in  the  South ; 
and  secession,  should  it  succeed,  and  establish  a  prosperous 
and  powerful  nation,  founded  on  cotton  and  slavery,  cannot 
possibly  be  a  good  thing, — must,  indeed,  be  an  evil  thing, — to 
the  Northern  people,  Democrats  included.  How  is  it,  then,  that 
any  portion  of  the  Northern  Democratic  party  conspired  with 
the  South  to  repeal  the  Missouri  Compromise,  to  overturn  the 
Government,  and  to  destroy  the  Union  ? 

If  one  could  answer  that  question,  it  would  go  far  to  explain 
the  true  nature  of  Democracy  in  this  country,  to  reveal  its  ten- 
dencies and  dangers,  and  to  suggest  the  means  of  resisting 
them.  A  tempest  shows  defects  in  the  ship,  and  the  strain  of 
this  war  ought  to  show  to  observant  eyes  the  weak  points  of 
our  Constitution.  Why  did  it  not  prevent  the  war  ?  Why  is 
the  rebellion  now  more  than  a  year  old,  yet  still  with  armies 
in  the  field,  and  the  issue  doubtful?  To  get  at  the  true  cause 
of  the  mischief,  Ave  must  first  dispose  of  certain  influences,  not 
strong  enough  to  be  causes.  Slavery  and  its  consequence,  the 
oligarchic  element  in  Southern  society,  did  not  alone  cause  the 
war,  or  rather  were  not  the  proximate  causes  of  it,  for  sooner 
or  later  slavery,  Avhich  is  in  its  nature  aggressive,  must  have 
led  to  Avar.  The  South  is  Aveak,  the  North  is  strong.  The 
Avhole  poAver  of  the  South,  as  such,  depends  upon  its  alliance 
Avitli  some  party  in  the  North.     Therefore,  as  already  stated, 


DEMOCRACY.  331 

however  passionate,  violent  and  aggressive  the  South  might 
have  been,  tliat  party  might  have  held  it  in  check  at  any  pe- 
riod of  the  contest,  from  first  to  last,  by  resisting  its  unrea- 
sonable demands. 

Abolitionism  did  not  cause  the  war.  As  a  political  power 
it  was  weak,  because  as  an  element  of  popular  opinion  it  Avas 
weak.  Its  strength  rested  on  disinterested  enthusiasm  for 
abstract  moral  truth.  Such  enthusiasm  is  far  above  the 
mental  level  of  the  masses  of  any  country.  That  it  should 
reach  them  or  move  them  to  action,  unless  connected  with 
their  own  interests,  is  simply  impossible.  To  feel  any  inte- 
rest in  a  question  such  as  the  liberty  or  happiness  of  an  inferior 
and  distant  race,  requires  a  high  degree  of  intelligence ;  to 
feel  enthusiasm  on  such  a  subject,  to  become  fanatical  about 
it,  requires  culture  and  a  sensitive  moral  nature,  which  can 
be  predicated  only  of  a  very  small  and  select  class.  We 
therefore  find  the  Abolition  sentiment  confined  almost  ex- 
clusively to  New  England,  where  property  and  education  are 
more  generally  diifused,  where  literature  has  a  wider  and 
stronger  influence,  and  where  the  love  of  liberty  is  more 
intense,  because  the  people  are  of  purer  Saxon  blood,  than  in 
other  parts  of  our  country.  Even  in  New  England,  however, 
the  anti-slavery  sentiment  did  not,  among  any  large  portion 
of  the  people,  reach  the  point  of  enthusiasm,  leading  to  Abo- 
lition as  a  measure  of  Government,  or  to  interference  with 
Southern  rights.  It  was  controlled  by  the  love  of  Union  and 
respect  for  the  laws.  Enthusiasm  was  the  attribute  of  indi- 
viduals and  a  small  circle  of  their  followers.  A  few  persons 
of  eloquence  and  high  intellect,  unconnected  with  party  inte- 
rests or  purposes,  free  from  any  personal  motive  or  ambition 
connected  with  the  subject,  but  dominated  by  a  great  and 
noble  idea,  were  the  fanatics  who  frightened  and  enraged  the 
South.  One  of  them  was  a  woman  of  genius,  a  true  artist, 
who  shot  at  slavery  some  keen  arrows,  pointed  with  truth  and 
winged  with  fancy.  Others  were  quiet  scholars,  students 
and  thinkers,  such  as  Wendell  Phillips,  H.  W.  Beechcr,  Theo- 
dore Parker  and  Emerson,  men  whose  works  have  given  lustre 
to  the  literary  fame  of  the  country,  and  whose  most  extreme 


332  THE     TRIAL     OF    THE     CONSTITUTION, 

opinions  arc  on  a  level  "with  those  of  the  same  class  in  the 
cultivated  capitals  of  Europe. 

Such  opinions  cannot  become  popular,  any  more  than  the 
works  of  Bacon,  Kant  and  Plato  can  become  popular.  Truth 
must  be  concrete  to  reach  the  mind  or  touch  the  feelings  of 
the  multitude.  This  deficiency  and  weakness  in  the  cause  of 
Abolition  the  madness  of  the  South  supplied.  They  attacked 
Northern  rights  for  the  sake  of  slavery.  With  inconceivable 
folly  they  undertook  to  put  chains  on  the  stalwart  limbs  of 
Northern  strength.  Then,  for  the  first  time,  after  the  lapse 
of  many  years,  the  masses  of  the  Northern  people  were  made 
aware  of  the  existence  of  slavery  in  the  South  as  an  important 
national  fact.  Then,  for  the  first  time,  they  were  led  to 
notice  it  with  attention.  The  sight  was  not  pleasant,  for 
slavery  is  far  from  beautiful,  and  at  the  moment  its  look  and 
attitude  were  not  friendly,  hostile  indeed,  giving  tokens  of  a 
disposition  to  threaten  and  command.  Even  then,  however, 
the  proud  North,  conscious  of  strength ;  the  calm  North,  slow 
to  anger  ;  the  patriotic  and  law-loving  North,  imbued  Avith 
the  spirit  of  Union  and  nationality  ;  the  humane  North,  think- 
ing of  the  possible  horrors  of  servile  war  ;  the  Saxon  North, 
sympathizing  with  their  own  blood  in  the  South,  which  dis- 
dains equality  with  the  negro ;  the  manufacturing  and  com- 
mercial North,  not  unmindful  of  cotton, — could  not  determine 
to  destroy  slavery,  ugly  as  it  was,  and  an  enemy  full  of  spite 
and  venom.  It  went  no  further  than  to  say,  "  Let  us  keep  it 
where  it  is.  It  is  an  ill-looking  thing  and  a  mischievous. 
Not  good  can  it  do  but  evil,  anywhere.  The  Southern 
people,  it  seems,  love  and  worship  it.  They  are  welcome  to 
it,  but  it  shall  not  spread  into  the  Territories.  We  intend 
these  as  the  destined  seat  of  a  great  empire  of  Saxon  liberty 
and  civilization,  not  as  the  home  of  Africa  and  slavery.  The 
Southern  people  broke  the  Missouri  Compromise  to  carry 
slavery  nortli  of  its  appointed  boundary.  We  are  thus  re- 
leased from  that  compact,  and  will  carry  freedom  south  of 
that  boundary."  There  is  nothing  abstract  in  these  opinions, 
no  enthusiasm,  no  fanaticism.  They  are  thoroughly  practical 
and  thoroughly  Saxon,  springing  directly  out  of  the  dominant 


DEMOCRACY.  333 

passions  of  the  race,  love  of  power,  love  of  liberty  and  love  of 
land.  Dreamy  reveries  about  educating  the  negro  up  to  the 
level  of  the  Avhite,  Utopian  visions  of  a  civilized  Africa  on  this 
or  any  other  continent,  wild  plarts  of  general  emancipation, 
never  entered  the  heads  or  the  hearts  of  the  people,  never 
voted  for  Fremont,  never  poured  forth  through  all  the  hills 
and  valleys  of  the  North,  the  fiery  flood  of  feeling,  which,  by 
the  mercy  of  the  Gods,  floated  Mr.  Lincoln  into  power. 
The  privilege  of  not  being  governed  by  the  South  was  what 
the  Northern  people,  being  a  majority,  demanded  ;  liberty  for 
themselves,  not  for  the  negro,  and  so  far  as  the  Territories 
were  concerned,  as  a  Western  election  song  expressed  it, 

"  The  right  to  the  soil, 
And  the  right  to  toil."' 

Abolition,  therefore,  as  a  sentiment,  an  opinion,  a  faith,  a 
fanaticism  or  an  element  of  political  power,  Avas  not  the  cause 
of  the  war. 

But  it  may  be  said  the  Republican  party,  because  of  the 
opinions  above  expressed,  held  by  the  great  body  of  it,  did 
cause  the  war.  They  attempted  to  restrain  the  South,  they 
implied  disapprobation  of  slavery.  But  the  repeal  of  the 
Missouri  Compromise  and  the  results  that  followed,  created 
the  Republican  party.  Until  the  occurrence  of  these  events 
there  was  no  political  party  in  the  North,  of  any  influence, 
organized  on  the  basis  of  opposition  to  slavery,  nor  would 
have  been,  had  the  Compromise  been  observed.  It  was  broken 
for  the  purpose  of  securing  Kansas  to  the  South.  Slavery 
became  aggressive  and  provoked  Northern  resistance,  which 
took  the  form  of  the  Republican  party,  and  this  aggression, 
which  might  have  been  checked,  Avas  permitted,  encouraged 
and  adopted  by  the  leaders  of  the  Democratic  party.  The 
forcible  election  of  the  Kansas  Legislature  by  Missouri  votes, 
because  thus  supported,  almost  elected  Fremont ;  the  Lecomp- 
ton  Constitution  did  elect  Mr.  Lincoln,  and,  notwithstanding 
all  these  causes  of  complaint  and  irritation,  the  great  mass  of 
this  party  never  dreamt  of  any  attack  on  slavery  as  a  vested 
interest  and  a   Southern    institution,    but  were    at  all  times 


334  THE    TRIAL     OF    THE     CONSTITUTION. 

ready  to  protect  it  in  every  constitutional  right.  The  proof 
of  this  is  the  nomination  of  Mr.  Lincoln  instead  of  Mr.  Sew- 
ard, the  acknowledged  leader  and  eminent  man  of  the  party. 
His  name  had  become  so  much  identified  with  extreme 
opinions  on  the  subject  of  slavery,  that  he  was  dropped  be- 
cause it  was  feared  that  he  could  not  be  elected.  Another 
proof  is  that  Mr.  Lincoln,  sustained  by  the  great  majority  of 
those  who  voted  for  him,  has  been  from  the  first,  and  is  at 
this  moment  resisting  the  Abolitionists  and  defending  slavery, 
which  even  in  the  midst  of  a  war  of  which  it  was  the  cause, 
exists  only  by  reason  of  the  protection  thus  afforded  by  the 
conservative  men  of  the  North.*  With  these  may  be  classed 
the  party  who  voted  for  Mr.  Bell.  Their  opinions  varied  but 
little  from  the  great  body  of  the  Republicans  on  the  subject  of 
slavery,  the  difference  between  them,  as  parties,  being  that 
the  latter  contained  a  certain  proportion  of  Abolitionists  from 
which  the  other  w^as  free.  Thousands  hesitated  between  Mr. 
Lincoln  and  Mr.  Bell,  and  voted  for  the  former  only  because 
they  did  not  think  it  possible  to  elect  the  latter.  Thousands 
voted  for  Mr.  Bell  only  because  they  feared  the  Abolition  ele- 
ment of  the  Republican  party. 

Party  names  are  here  used  only  to  represent  certain  opinions 
and  classes  of  the  people.  Democracy  or  popular  government, 
so  far  as  it  is  established  by  our  Constitution,  is  now  on  its 
trial.  It  is  very  evident  that  our  present  troubles  might  have 
been  prevented  by  the  exercise  of  sufficient  intelligence  by  the 
people.  Truth  and  justice,  had  they  guided  the  movements 
of  parties,  would  have  prevented  them.  A  defect,  therefoi*e, 
exists  somewhere.  If  in  any  portion  of  the  people,  then  the 
Constitution  should  have  excluded  the  influence  of  that  por- 
tion. If  not  in  the  people,  then  the  machinery  intended  to 
apply  the  popular  will  is  badly  contrived.  If  Democracy  itself 
be  an  evil  and  dangerous  thing,  then  those  who  made  the  Con- 
stitution should  have  imposed  upon  it  eftectual  restraint ;  and 

*  On  the  clay  these  lines  were  written,  May  20,  Mr.  Lincoln's  Proclama- 
tion was  published,  disavowing  the  act  of  General  Hunter,  who  had  just  de- 
clared all  the  slaves  of  Georgia,  South  Carolina,  and  Florida,  free. 


DEMOCRACY.  3-35 

we  "vvlio  hope  to  live  under  the  Constitution  must,  if  we  can, 
protect  it  and  posterity  from  the  danger  of  Democracy.  We 
have  eliminated  from  the  discussion,  as  not  liavino;  caused  the 
war,  the  Abolitionists,  by  which  term  we  mean  those  who  ad- 
vocate interference  with  slavery  in  the  Slave  States,  the  Re- 
publicans, the  friends  of  Mr.  Bell,  and  the  Southern  people ; 
the  last,  however,  only  because  they  were  too  weak  to  perform 
such  a  feat,  without  the  assistance  of  some  party  in  the  North. 
The  Democratic  party  only  remains,  and  on  a  previous  page 
has  been  mentioned  as  the  cause  of  the  war.  By  this  was 
meant  its  action  as  a  party,  by  means  of  its  constituted  autho- 
rities or  leaders.  Nevertheless,  as  it  had  such  leaders,  the 
dangerous  element  of  our  Government,  against  which  the  Con- 
stitution failed  to  provide,  must  lurk  in  this  party.  It  was 
always  in  alliance  with  the  South,  and  always  supported  the 
Southern  side  of  the  great  issues  that  have  divided  the  country. 
It  was  honest  in  that  support,  and  the  alliance  was  beneficial 
to  the  country,  inasmuch  as  it  was  a  check  on  sectional  divi- 
sions. But  the  alliance  was  maintained  after  it  should  have 
been  broken,  and  the  support  continued  when  it  should  have 
been  withdrawn.  The  exactions  of  the  South,  however,  soon  di- 
vided the  party.  A  large  portion  of  it  refused  to  accede  to  them, 
and  when  the  war  commenced,  gave  their  votes,  their  talents 
and  their  blood  to  the  cause  of  the  Government  and  the  Union. 
This  section  was  represented  by  Mr.  Douglas.  It  is  true  that 
he  was  the  author  of  the  Kansas  and  Nebraska  Bill,  by  which 
the  Missouri  Compromise  was  violated.  But  the  construction 
he  put  on  that  bill  was,  that  the  people  of  the  Territories 
should  be  at  liberty  to  accept  or  reject  slavery  as  one  of  their 
"domestic  institutions,"  a  construction  which,  however  uncon- 
stitutional, accords  with  the  instincts  of  the  American  people, 
and  with  the  principles  of  om*  Government,  the  true  doctrine 
being  that  whilst  Congress  has  supreme  power  over  the  Terri- 
tories, constantly  exercised  from  the  beginning,  to  prevent  or 
prohibit  slavery,  yet  the  power  ought  to  be  used  in  accordance 
with  the  wishes  of  the  people  of  the  Territories.  Had  it  been 
so  used,  there  would  have  been  no  war,  Tlie  Douglas  section 
of  the  party  refused  its  sanction  to  the  Kansas  outrages,  and 


336  THE    TRIAL    OF    THE    CONSTITUTION. 

helped  to  defeat  the  Lecompton  Constitution.  It  certainly 
was  i:;uilty  of  repealing  the  Missouri  Compromise,  and  it  fa- 
vored unAvorthy  concessions  to  the  South  after  the  rebellion 
beo-un.  But  it  is  believed  since  to  have  become  merged  into 
the  Republican  party,  or  carried  away  by  the  current  of  pa- 
triotic feeling,  excited  by  the  war,  to  give  a  hearty  support  to 
the  Government  in  its  efforts  to  restore  the  Union.* 

The  pernicious  element,  therefore,  which  has  shown  itself  so 
poAverful  for  evil,  does  not  infect  the  whole  of  that  portion  of 
the  people  classed  as  the  Democratic  party.  It  is  a  fortunate 
circumstance,  arising  from  the  condition  of  our  country,  that 
social  distinctions  do  not  form  the  dividing  lines  of  political 
parties.  The  European  idea  of  Democracy  is,  that  it  is  the 
government  of  the  lower  classes,  therefore  of  mere  ignorance 
and  poverty ;  and,  as  a  consequence,  incompatible  with  the 
security  of  order  and  property,  and  with  the  legitimate  rule 
of  knowledge  and  intelligence.  This  is  no  doubt  true  of  any 
European  nation,  and  is  the  reason  why  monarchy  and  aristoc- 
racy are  maintained,  as  the  only  defence  against  anarchy  or 
the  degradation  of  government  to  the  level  of  the  multitude. 
But  the  scope  offered  to  enterprise  and  industry,  the  abundance 
of  cheap  land,  the  vast  undeveloped  resources  of  the  country 
calling  for  labor,  the  ease  with  which  property  is  acquired,  the 
absence  of  an  ancient  privileged  class,  the  sentiments  of 
equality,  and  the  constant  exercise  of  political  liberty,  have 
created  a  very  different  state  of  things  here.  The  Avords 
rabble,  canaille,  mob,  are  inapplicable  to  any  considerable 
portion  of  our  people.  Our  "  dangerous  classes"  are  not 
strong  enough  to  create  revolutions.  Our  working  classes 
have  work,  bread  and  liberty  in  abundance,  without  fighting 
for  them.  They  are  prosperous  enough  to  desire  order  and 
laAV,  intelligent  enouoh  to  understand  that  these  are  essential 
to  their  well-being,  and  are  not  jealous  either  of  wealth  or 
political  power,  for  they  may  aspire  to  both. 

The  Democratic  party  with  us  therefore  is  not  a  representa- 
tive of  mere  numbers,  brute  force,  ignorance  and  radicalism. 
It  does  not  make  war  upon,  property,  order,  refinement  and 
educatioii,  and  therefore  we  are  in  no  danger  from  attacks  on 


DEMOCRACY.  337 

the  primary  institutions  of  society,  ft-om  agrarianism,  Social- 
ism or  red-republicanism,  with  which  the  rise  of  tlemocracy 
threatens  the  nations  of  Europe.  Nevertheless  American  so- 
ciety is  not  entirely  free  from  the  elements  of  evil  Avhicli  per- 
vade the  lower  classes  in  the  Old  World.  We  have  an  uncer- 
tain and  fluctuating,  and  there  is  reason  to  fear,  increasing 
quantity  of  poverty,  vice  and  ignorance,  collected  for  the  most 
part  in  our  large  cities,  but  also  scattered  abroad  in  manu- 
facturing, and  even  in  some  rural  districts.  We  have  also  the 
Celtic  race,  unaltered  through  ages,  and  exhibiting  the  same 
characteristics  here  as  in  France,  Ireland,  Wales,  and  the 
Highlands  of  Scotland,  possessing  many  fine  qualities,  but 
unable  to  keep  pace  with  the  Saxon  in  the  march  of  civiliza- 
tion, and  unable,  as  its  history  shows,  to  appreciate,  establish 
or  maintain  civil  liberty. 

Liberty  combined  with  order  and  law,  steady  progress  in 
mental  and  material  improvement,  belong  and  have  always 
belonged  exclusively  to  the  Teutonic  races.  It  is  said  that 
there  are  now  more  Irish  in  this  country  than  in  Ireland. 
They  come  here  to  work  it  is  true,  but  also  to  vote.  We  are 
told  that  they  are  soon  merged  in  the  great  mass  of  our  people. 
But  they  are  not  merged.  Everywhere  they  occupy  the  lowest 
ranks  of  industry.  Everywhere  the  American  is  the  master 
workman,  takes  as  his  right  all  the  places  which  require 
thought,  and  everywhere  his  mind  guides  the  Celt,  who  per- 
forms those  labors  which  demand  the  least  degree  of  mental 
power.  The  Celt  is  the  day  laborer,  the  servant,  seldom  an 
owner  of  land,  a  manufacturer  or  mechanic,  has  no  aspira- 
tions for  improvement,  rarely  exhibits  in  his  home  and  its  sur- 
roundings a  love  of  order,  comfort  and  neatness,  and  does  not 
like  the  Saxon  carry  in  his  brain  wherever  he  goes,  the  idea 
of  towns,  cities,  schools,  factories  and  free  scope  for  effort,  a 
picture  of  a  social  condition,  by  which  he  is  tormented  until 
he  can  realize  it.  As  the  Celt  is  incompetent  for  the  higher 
branches  of  industry,  he  is  indiff"erent  to  their  rewards.  He 
is  capable  of  strong  attachments,  is  passionate  and  impulsive, 
fond  of  excitement,  and  a  lover  of  war  and  glory.  He  thus 
makes  a  good  soldier,  and  has  a  natural  tendency  to  esprit  de 

22 


338  THE    TRIAL     OF    THE    CONSTITUTION. 

corps,  and  obedience  to  a  leader.  The  Scottish  clans,  the  in- 
evitable military  despotism  of  France,  the  thorough  miion  of 
feeling  and  action  among  the  Celtic  population  of  Ireland,  and 
the  control  over  the  race  exercised  by  the  Catholic  Church, 
exhibit  this  tendency.  The  Celt  is  thus  exactly  what  a  leader 
of  any  sort  would  desire,  a  passionate  and  devoted  partisan, 
ready  to  obey  orders  without  asking  questions.  He  is  prized, 
therefore,  by  a  Highland  chief,  a  Catholic  priest,  a  French 
emperor  and  an  American  demagogue. 

The  Celt  has  become  a  most  important  constituent  of  our 
society.  He  is  planted  irrevocably  in  the  middle  and  tempe- 
rate zone  of  our  country,  as  the  negro  is  in  the  South.  He 
is  far  superior  to  the  negro, — superior,  indeed,  to  the  Saxon 
in  some  of  his  attributes, — more  warm-hearted,  generous  and 
enthusiastic,  but  he  prefers  war  to  peace,  idleness  to  industry, 
ignorance  to  knowledge,  license  to  liberty  and  despotism  to 
republicanism.  Natural  laws  provide  that  the  races  of  men 
shall  remain  separate.  They  will  forever  keep  the  Celt  apart 
from  the  Saxon  in  this  country,  as  they  have  done  in  Europe. 
Permanently,  therefore,  we  have  got  both  Ireland  and  Africa 
in  America. 

The  Germans  who  emigrate  to  our  shores  in  such  multitudes 
are  very  different  from  the  Irish,  both  in  character  and  their 
influence  on  the  future.  Some  of  them  are  of  the  loAvest  class, 
and  bring  with  them  only  their  poverty,  ignorance,  vices  and 
radicalism.  Others,  particularly  from  the  North  of  Ger- 
many, where  the  blood  is  more  pure  than  in  the  South,  are 
intelligent,  educated,  skilled  in  various  arts  of  industry  and 
possessed  of  property.  They  are  all  of  the  great  Teutonic 
race,  capable  of  improvement,  lovers  of  order  and  constitu- 
tional liberty,  of  science  and  literature.  These  attributes,  as 
Avell  as  their  kindred  blood,  assimilate  them  to  the  Saxon, 
with  whom  they  eagily  amalgamate,  and  thus,  unlike  the  Celt, 
become  soon  really  merged  in  the  great  mass  of  the  American 
people. 

Now  most  of  these  elements  of  American  society  which  may 
be  classed  as  dangerous,  belong  to  the  Democratic  party. 
The  Celtic  portion  of  the  Irish  population,  that  is,  the  Catho- 


DEMOCRACY.  339 

lie  Irish,  belong  to  it  exclusively.  The  German  emigrants, 
more  especially  the  radical  part  of  them,  attracted  by  the 
name,  belong  to  it  very  generally  when  they  first  arrive,  but 
neither  they  nor  their  descendants  adhere  to  it  with  tenacity. 
The  foreign  population  includes  most  of  the  vicious,  ignorant 
and  disorderly  elements  of  our  society  in  town  and  country. 
Our  prisons  and  almshouses  do  not  contain  many  Americans. 
There  are  no  doubt  drunkards,  paupers,  idlers,  rowdies  and 
criminals  among  our  people,  but  they  do  not  belong  exclu- 
sively to  any  party,  although  it  may  be  said,  that  they  have  a 
natural  inclination  to  Democracy  in  the  European  sense,  that 
is  to  say,  against  the  sober  and  conservative  principles  of 
order  and  obedience  to  law. 


Equality  of  condition,  such  as  exists  in  our  Northern  States, 
induces  a  tendency  towards  the  formation  of  parties,  and  a 
habit  of  obedience  to  party  discipline.  A  vast  multitude  of 
individuals,  with  no  persons  or  classes  among  them  much 
more  forcible  than  the  others,  or  distinguished  by  marked  dis- 
parity of  wealth  or  knowledge,  feel  the  necessity  of  govern- 
ment for  the  sake  of  security  and  tranquillity.  They  difler  in 
their  views,  and  thence  parties  arise.  But  each  member  of 
the  party  being  weak,  knows  that  he  has  strength  only  as  a 
member,  and  that  the  efficiency  of  the  party  depends  on  its 
organization,  just  as  each  soldier  of  an  army  knows  that  he 
himself  is  nothing  out  of  the  ranks,  and  that  the  success  of 
the  cause  in  which  he  is  engaged,  ae  Avell  as  his  own  safety, 
depend  on  discipline  and  obedience.  Now  ignorance  is  weak- 
ness, and  poverty  is  weakness,  and  the  party,  therefore,  which 
contains  the  largest  proportion  of  these,  will  be  the  most 
thoroughly  controlled  by  party  rules,  and  will  yield  the  most 
implicit  obedience  to  its  leaders.  Intelligence  likes  to  judge 
for  itself,  wealth  inspires  a  sense  of  freedom  and  independence. 
Their  demands  must  be  satisfied,  and  therefore,  the  vote  of  a 
party  which  is  composed  for  the  most  part  of  the  rich  and 
educated,  is  not  to  be  counted  on  with  certainty.     In  an  aris- 


340  THE     TRIAL     OF     THE     CONSTITUTION. 

tocracy,  individuals  are  powerful ;  in  a  republic,  interests  and 
opinions.  Great  interests,  such  as  commerce  and  manufac- 
tures, demand  protection,  and  great  principles,  appreciated 
and  valued  by  cultivated  intelligence,  demand  satisfaction. 
Ignorance  and  poverty  make  no  sucli  demands,  because  they 
have  no  such  wants.  Nevertheless  they  love  power  and  vic- 
tory, and  these  are  all  they  ask  of  their  party  leaders. 

This  analysis  of  American  society  Avill  explain  the  causes  of 
the  war.  The  alliance  of  the  South  was  necessary  to  give 
power  to  the  Democratic  party,  and  the  South  demanded  com- 
pliance with  all  its  demands  as  the  price  of  power.  The  leaders 
of  the  party  counted  on  old  ties  and  sympathies,  discipline, 
organization,  and  the  possession  of  power  to  secure  the  adhe- 
sion of  its  members.  They  counted  on  old  party  cries  and 
prejudices,  on  the  Celt  and  the  roAvdy,  the  grog-shop  and  the 
alley,  Tammany  Hall  and  the  Empire  Club,  But  they  went 
too  far.  They  left  out  of  their  calculations  the  great  fact  of  a 
human  conscience,  of  moral  sentiment,  of  the  American  inbred 
love  of  liberty.  They  thus  divided  their  party  and  caused  its 
defeat,  but  not  in  time  to  save  the  country  from  a  dreadful  war 
and  a  doubtful  future.  A  corrupt  alliance  between  Southern 
oligarchy  and  the  evil  elements  of  Northern  democracy,  has 
produced  a  contest  between  both  and  the  American  people, 
which  threatens,  and  may  yet  destroy  our  Government  and  the 
Union.  Southern  oligarchy  is  founded  on  the  negro ;  Northern 
democracy  is  in  the  Middle  States  dangerous,  because  of  the 
Celt.  Are  then  liberty  and  civilization  here  as  in  Europe  to 
be  confined  to  the  North  ?  Is  it  true  that  neither  can  flourish 
except  where  the  snow-flajie  falls  ?  That  the  energetic,  Teu- 
tonic man,  bold,  adventurous  and  constructive,  whenever  he 
advances  into  the  fertility  and  beauty  of  temperate  and  South- 
ern climes,  must  in  the  end  recede  before  the  Celtic  and  the 
dark  races,  and  find  a  home  only  among  rocks  and  mountains, 
ice  and  granite  V 


Regarding  the  war  as  a  test  of  the  Constitution,  one  im- 


DEMOCRACY.  341 

portant  fact  has  been  developed  in  its  origin  and  progress :  it 
is  the  work  of  a  small  minority  of  the  people ;  not  a  minority 
resisting  the  tyranny  of  a  majority,  but  an  aggressive,  violent 
minority  or  faction,  making  an  unjust  assault  on  the  Govern- 
ment. A  portion  of  the  Southern  people  in  combination  with 
a  section  of  the  Democratic  party,  or  rather  the  political 
leaders  of  each,  expecting  the  support  of  the  whole  party, 
caused  the  Avar,  And  these  are  precisely  the  dangers  under 
Democratic  institutions,  the  sway  of  demagogues  arising  from 
the  indifference  of  the  masses  to  political  questions,  and  the 
ease  with  which  the  people  are  deceived,  because  of  their  in- 
ability to  judge  immediately  of  the  tendency  and  results  of 
important  measures.  The  multitude  rarely  reason,  and  do  not 
see  events  in  principles  and  effects  in  causes.  Absorbed  in 
private  occupations,  having  few  opportunities  for  the  discussion 
and  mental  collision  that  elicit  thought,  reading  chiefly  their 
party  newspapers,  the  mass  of  men  are  prone  to  put  their  faith 
in  established  guides.  Not  till  erroneous  principles  have 
brought  about  disastrous  events,  not  till  dangerous  causes 
have  produced  the  fact  of  evil,  are  the  people  roused,  and  then 
it  may  be  too  late.  Eternal  watchfulness,  as  has  often  been 
said,  is  the  price  of  liberty.  It  is  also  the  price  of  safety  in  a 
democracy,  more  especially  in  periods  of  tranquil  prosperity, 
when  the  love  of  material  well-being  engages  all  minds,  and 
rapid  wealth  inspires  a  universal  greed  of  gain.  Public  opinion 
thus  becomes  utilitarian,  politics  a  trade.  The  spiritual  powers 
that  rule  mankind  are  invisible  to  the  eye  of  sensuality,  and 
when  all  classes  are  alike  busy  in  one  engrossing  pursuit,  with 
no  Brahmins  for  moral  guides,  and  no  sentinel  on  the  watch- 
tower  to  sound  the  alarm,  the  enemy  may  easily  enter  the  gate, 
and  the  castle  be  surprised  and  taken.  Peace  and  plenty 
enervate  a  people.  Moral  sentiment  is  weakened  by  the  taste 
for  riches  and  the  habit  of  sensual  enjoyment,  the  external 
overpowers  the  internal,  matter  dominates  over  mind  and  dulls 
the  soul  to  the  spirit  of  patriotism  and  of  freedom. 

"For  what  more  oft  in  nations  grown  corrupt, 
And  by  their  vices  brought  to  servitude, 
Than  to  love  bondage  more  than  liberty ; 
Bondage  with  ease,  than  strenuous  liberty." 


342  THE    TRIAL     OF    THE     CONSTITUTION. 

Into  this  bondage  the  country  was  gradually  falling.  The 
dio-nity,  the  honor,  the  independence,  the  respectability  and 
self-respect  of  the  North  were  in  far  greater  danger  from  the 
combined  powers  of  slavery  and  the  Democratic  party,  than 
the  South  ever  was  from  Northern  opinion.  The  material 
benefits  conferred  by  the  Union  were  so  obvious  and  so  vast, 
that  it  came  to  be  valued  over  much,  because  valued  chiefly  for 
these.  Slavery  acquired  undue  importance,  because  its  pro- 
tection was  regarded  as  essential  to  the  Union.  Every  new 
demand  of  slavery  Avas  accompanied  by  a  threat  of  secession, 
if  not  granted.  To  resist  these  demands,  therefore,  was  to 
endanger  the  Union. 

This  argument  was  constantly  used,  and  with  great  and  in- 
creasing efl"ect,  appealing  as  it  did  to  love  of  country,  to  love 
of  peace,  and  to  love  of  money.  It  was  resisted  by  the  few 
who  prefer  truth  and  justice  and  the  eternal  right,  to  all  of 
these.  But  their  voices  could  not  penetrate  the  thick  folds  of 
selfish  conservatism,  nor  reach  the  minds  of  the  people,  unless 
aided  by  the  clarion  blast  of  deeds  and  facts.  We  may  thank 
the  South  and  the  Democratic  politicians  for  the  gross  outrages 
and  crimes  that,  at  length,  broke  the  spell  which  was  gradually 
spreading  its  slumberous  and  fatal  influence  over  the  nation. 
Had  party  leaders  been  more  adroit,  we  had  been  lost.  Hard 
blows,  like  Kansas  raids,  the  Lecompton  Constitution,  and 
hauling  down  our  flag  at  Sumter,  were  necessary  to  rouse  us 
from  our  false  security,  our  base  compliances  and  our  dreamy 
lethargy.  We  had  become  worshippers  of  cotton  and  corn,  of 
farms  and  mills,  of  banks  and  railroads.  When  the  South 
threatened  disunion,  vested  interests  turned  pale.  The  one  moral 
element  left  in  the  politics  of  the  country  was  Abolitionism. 
It  alone  spoke  of  duty,  of  truth,  of  justice,  and  a  higher  law 
than  the  rules  of  arithmetic  or  the  Constitution.  It  was 
answered  by  the  cry  of  cotton,  commerce.  Union,  the  Consti- 
tution, and  cent  per  cent.  These  were  not  ashamed  to  ridi- 
cule any  higher  law.  Abolitionism  was  weak.  It  was  stifled 
and  overcome  by  prosperity  and  the  Democratic  party.  The 
term  Abolitionist  became  a  word  of  reproach,  and  every  man 
Avas   called  an   Abolitionist  Avho   did  not  echo   the  extreme 


DEMOCRACY.  343 

sentiments  of  the  South.  To  hint  that  slavery  was  an  evil, 
that  slave-trading  and  slave-breeding  were  inconsistent  with 
any  high  standard  of  Christian  civilization,  that  slaves  were 
really  men,  and  not  mere  things,  was  to  be  an  Abolitionist. 

Those  who  ventured  to  express  such  opinions  found  them- 
selves coldly  received  in  society,  if  not  excluded  from  it. 
The  entrance  into  public  life,  except  in  certain  very  limited 
districts,  was  barred  against  them.  Gentlemen  of  literary 
reputation,  who  had  the  hardihood  to  utter  these  sentiments 
in  Northern  cities,  were  mobbed,  and,  with  their  audiences, 
required  the  protection  of  the  police.  They  were  accused  of 
uttering  "incendiary  doctrines,"  which  might  incite  the  slaves 
to  insurrection.  It  was  said  that  such  things  were  "  oifensive" 
to  the  South,  and  might  "irritate"  them  to  destroy  the 
Union.  What,  then,  would  become  of  our  Southern  trade, 
and  our  vested  interests  ?  Even  after  the  rebellion  was  ac- 
tually in  arms,  vested  interests  called  town-meetings,  depreca- 
ting Southern  wrath,  offering  "concessions"  to  the  South, 
and  promising  that  the  North  should  behave  better  in  future. 
Had  the  mad  South  even  then  been  able  to  see  its  true  posi- 
tion, and  frankly  yielded,  willing  to  take  its  chance  with  its 
old  all}^  to  help  it,  under  Mr.  Lincoln,  the  storm  would  have 
passed  away  ;  the  cry  against  Abolitionism  would  have  been 
revived  ;  free  speech  and  a  free  press  on  the  subject  of  slavery 
would  have  been  silenced;  and  the  impudent  threat  of  a 
Southern  senator,  that  he  would  ere  long  call  the  roll  of  his 
slaves  on  Bunker  Hill,  might  perhaps  have  been  executed. 
But  the  boom  of  Sumter's  guns  reached  the  farm-houses  and 
Avorkshops, — reached  the  real  people,  and  thrilled  their  hearts. 
Their  country's  flag  fired  on  by  traitors,  was  not  an  abstract 
principle.  It  was  something  concrete,  which  they  could 
thoroughly  understand.  They  did  not  wait  to  think,  but 
leaped  at  once  to  action.  It  is  but  just  to  say  that  vested 
interests;  commerce  and  manufactures,  banks  and  railroads, 
mortgages,  ground-rents,  and  scrip,  were  touched  by  the  same 
noble  rage,  and  poured  out  freely  both  their  money  and  their 
blood.     It  was  and  is  a  noble  spectacle,  and  will  do  more  to 


344  THE     TRIAL    OF     THE     CONSTITUTION. 

make  us  a  nation  tlian  years  of  peace,  prosperity,  and  clema- 
gogueisra. 

It  thus  appears  that  the  -war  was  caused  by  the  politicians, 
and  not  by  the  people.  Even  in  the  South,  except  in  South 
Carolina,  a  majority  of  the  people  were  opposed  to  secession. 
So  they  voted  when  they  were  allowed  to  vote,  notwithstand- 
ing all  the  efforts  and  arts  of  the  politicians,  to  "fire  the 
Southern  heart,"  by  passionate  harangues  and  gross  misrepre- 
sentations. Most  of  the  Southern  States  were  precipitated 
into  secession  by  the  official  acts  of  partisan  leaders.  The 
great  majority  of  the  Northern  people,  as  already  shown, 
were  loyal  and  friendly, — almost  submissive  to  the  South. 
The  fact,  therefore,  that  this  war  has  been  caused  by  politi- 
cians, acting  against  the  wishes  of  the  people,  must  be  attri- 
buted to  some  defect  in  the  electoral  machinery  of  Govern- 
ment, by  which  it  fails  to  represent,  and  carry  out  promptly 
and  truly  the  enlightened  opinion  of  the  nation.  The  Consti- 
tution, as  already  stated,  provides  no  such  machinery,  except 
for  the  election  of  a  President,  and  this  has  not  been  used. 
But  the  politicians  have  invented  an  instrument  of  their  own, 
called  a  nominating  convention,  and  have  applied  it  not  only 
to  Presidential  elections,  but  to  all  others.  The  merits  and 
defects  of  this  machine  have  been  discussed  in  the  chapter  on 
Executive  power.  Obviously  its  tendency  is  to  concentrate 
the  control  of  the  political  action  of  the  country  in  a  few 
hands.  The  conventions  are  really  electoral  colleges.  They 
really  choose  all  the  officers  of  the  Government  not  appointed 
by  the  Executive.  They  present  lists  of  candidates  to  the 
people,  and  no  one  can  be  elected  not  on  those  lists. 

The  action  of  the  people,  therefore,  is  indirect.  Their 
opinions,  in  passing  through  another  body,  are  discussed, 
modified,  sifted,  and  winnowed  according  to  the  character  of 
that  body.  It  is  obvious,  therefore,  that  on  the  organization 
of  nominating  conventions  the  whole  Avorking  and  success  of 
the  Government  depends.  They  may,  according  to  their 
nature,  become  an  admirable  contrivance  to  moderate  the 
passions,  check  the  rashness,  correct  the  ignorance,  and  repre- 
sent the  wisest  and  best  opinions  of  the  people;  or  they  may 


D  E  M  6  C  R  A  C  Y.  345 

serve  only  as  blind  agents  of  reckless  popular  folly  and  preju- 
dice; or  they  may  pervert  the  immense  poAver  intrusted  to 
their  hands  into  an  instrument  of  corruption  and  selfish  gain. 
As  it  is  impossible  for  the  people  to  select  candidates  for 
themselves,  some  plan  of  part}'  action,  by  which  they  can  be 
selected  and  presented  to  voters,  is  matter  of  absolute  ne- 
cessity. 

The  only  plan  yet  devised  is  the  election,  by  each  party,  of 
men  chosen  for  that  purpose,  who  are"  supposed  to  be  ac- 
quainted with  the  wishes  of  the  people  of  a  district,  and  with 
the  qualifications  of  aspirants  for  office.  But  a  double  duty 
is  thus  imposed  on  the  people.  They  must  first  vote  for  the 
convention,  and  again  for  the  nominees  of  that  convention. 
The  first  duty  is  habitually  neglected  by  the  busy  and  active 
portion  of  society,  unless  their  interest  is  excited  by  some 
crisis  in  public  affairs,  and  often  not  even  then.  The  regular 
elections  appointed  by  laAV  are  so  numerous,  that  they  make 
large  demands  on  the  time  and  attention  of  the  people. 
Many  do  not  care  to  vote  at  all.  The  farmer  Avill  not  leave 
his  plough,  the  merchant  his  counting-house,  the  mechanic  his 
workshop.  The  election  for  a  nominating  convention  is 
generally  unheeded  by  those  whose  influence  would  be  most 
important.  The  choice  of  delegates  falls  into  the  hands  of 
party  leaders,  supported  by  that  numerous  class,  who,  having 
no  absorbing  interests  or  duties  of  their  own,  love  the  excite- 
ment of  politics.  The  least  intelligent  part  of  the  people, 
therefore, — those  who  are  most  easily  excited  and  drilled  for 
party  action,  really  do,  in  the  normal  condition  of  affairs, 
elect  the  conventions. 

The  consequence  must  of  necessity  be,  that  men  unfit  for 
so  responsible  an  office  are  frequently  chosen.  Too  often  they 
are  unable  to  appreciate  the  qualities  necessary  for  public 
trust.  More  frequently  they  view  such  qualities  with  aver- 
sion and  dread.  Men  of  honorable  character  and  cultivated 
minds  are  not  likely  to  become  pliant  tools  in  the  hands  of 
party  managers;  nor  do  such  men  care  to  solicit  the  votes  of 
demagogues  and  trading  politicians.  The  convention  natu- 
rally selects  those  who  are  like  its  own  members  in  social 


346  THE    TRIAL     OF    THE     CONSTITUTION. 

rank,  manners,  and  education ;  why  not  also  confederates  in 
their  own  dishonest  and  selfish  designs  ?  A  convention  is  open 
to  every  sort  of  intrigue  and  corruption.  Its  organization 
affords  no  security  for  the  intelligence  and  purity  of  its 
character,  which,  if  evil,  effectually  bars  the  entrance  into 
public  life  against  the  best  talent  and  highest  virtue  in  the 
country.  Yet  to  such  hands  the  politics  of  the  whole  country 
are  confided.  The  conventions  select  the  President  and  Vice- 
President,  members  of  Congress  and  of  the  State  Legislatures, 
State  officers,  and  a  host  of  other  officers  who  wield  the  power 
of  the  Government. 

We  see  the  result.  Public  life  is  shunned  by  men  of  culti- 
vation and  refinement.  Official  station  implies  neither  high 
character  nor  high  ability,  and  confers  no  distinction.  But  it 
confers  the  opportunity  to  make  money,  and  to  enrich  rela- 
tives and  friends.  The  consequence  has  been,  a  degree  of 
corruption  disgraceful  to  the  country  and  the  age.  The 
"lobby"  has  become  an  institution, — a  sort  of  sub-Legisla- 
ture or  "Kitchen  Cabinet."  At  every  session  of  Congress  a 
committee  is  appointed  to  investigate  the  frauds  of  its  mem- 
bers and  of  the  Executive  departments.  Bribery  is  almost 
acknowledged  as  a  part  of  legislation,  wdiilst  dishonest  jobs 
and  contracts  so  abound,  that  they  are  regarded  as  things  of 
course.  Even  in  the  midst  of  the  patriotic  and  noble  feeling 
produced  by  the  rebellion,  the  large  expenditure  caused  by 
the  war  has  called  forth  hordes  of  greedy  speculators,  who 
have  grown  rich  on  the  plunder  of  the  people's  money.  The 
habit  had  been  formed ;  the  management  of  parties  had  already 
fallen  into  the  hands  of  gamblers  and  traders  in  votes  and 
oflSces,  who  have  plied  their  business,  all  the  more  briskly,  be- 
cause the  dangers  that  beset  the  country  multiplied  the  oppor- 
tunities of  profit.  Everything  has  long  been  bought  and 
sold, — legislation  for  the  benefit  of  corporations  and  cliques 
of  capitalists  ;  grants  of  public  lands  ;  official  influence  ;  even 
the  ability  to  introduce  applicants  for  jobs  to  those  who  give 
jobs. 

This  fi-ightful  venality  rivals  the  abuse  of  Executive  patron- 
age, in  its  degrading  and  poisonous  influence  on  the  Govern- 


DEMOCRACY.  347 

ment,  and  on  all  classes  of  the  community.  The  cause  of 
these  evils  is  not  the  ignorance  of  the  people.  Every  one  de- 
plores them,  wonders  at  them,  yet  cannot  think  of  a  remedy. 
The  Government  is  below  the  mental  and  moral  level,  even  of 
the  masses.  Go  among  them.  Talk  to  the  farmer  in  his  field, 
the  blacksmith  at  his  anvil,  the  carpenter  at  his  bench, — even 
the  American  laboring  man  who  works  for  hire,  in  the  North- 
ern States, — and  compare  their  conversation,  so  full  of  good 
sense  and  sound  feeling,  with  the  ignorance,  vulgarity,  per- 
sonality and  narrow  partisan  spirit  of  an  ordinary  Congres- 
sional debate,  and  with  the  disclosures  made  by  investigating 
committees.  Evidently  the  mind  and  moral  sentiment  of  the 
people  are  not  represented.  Visit  a  rural  hamlet.  Put  up 
your  horse  at  the  best  inn,  and  find  out,  from  the  communica- 
tive landlord,  Avho  are  the  men  in  the  neighborhood  most  re- 
spected for  their  intelligence,  property,  and  probity, — whom 
people  are  glad  to  consult,  and  make  their  trustees,  executors 
or  guardians  of  children.  You  will  be  told  that  they  are  the 
owners  of  the  Avell-cultivated  farms,  with  their  substantial 
barns  and  houses,  you  have  just  passed  on  the  road, — of  the 
comfortable  mansions,  surrounded  by  trim  gardens,  in  the  vil- 
lase  itself.  Then  ask  if  these  men  are  members  of  Congress 
or  of  the  State  Legislature,  or  if  they  Ire  delegates  to  nomi- 
nating conventions.  The  landlord  will  smile  at  your  question. 
No,  indeed.  These  men  are  not  politicians.  All  business  of 
that  sort  is  managed  for  the  county  by  Messrs.  Quirk,  Gam- 
mon and  Snap,  the  attorneys, — smart,  sharp,  active  men,  who 
have  risen  from  practising  law  to  practising  politics, — mem- 
bers of  a  profession  which  has  a  great  deal  to  do  with  govern- 
ing the  country,  and  who  sometimes  carry  with  them,  into 
public  life,  the  ignorant  prejudices,  the  narrow  views,  and  also 
the  habit  of  taking  fees,  acquired  at  the  bar. 


It  is  an  obvious  truth,  that  the  afi"airs  of  a  civilized  and 
powerful  nation  must  be  managed,  not  by  ignorance,  but  by 
knowledge, — not  by  folly,  but  by  wisdom.     The  success  of  a 


348  THE     TRIAL     OF    THE     CONSTITUTION. 

democratic  Govcniment  depends  -wholly  upon  the  general  in- 
telligence of  the  people.  But  what  does  it  avail  if  that  intel- 
ligence cannot  be  applied, — if,  through  some  defect  in  the  ma- 
chinery of  government,  an  irresponsible  power,  unknown  to 
the  law,  be  created,  which  rises  up  between  the  people  and  the 
public  good,  and,  professing  to  represent  the  former,  substi- 
tutes, for  their  convictions,  sentiments  and  interests,  its  own 
plots  and  plans,  petty  aims,  partisan  hates  and  selfish  private 
ends.  The  sum  total  of  all  the  purposes  of  Government  is  to 
get  good  men  into  power.  Have  nominating  conventions  done 
this  ?  Until  the  accidental  selection  of  Mr.  Lincoln,  has  not 
a  generation  grown  up  to  manhood  since  we  have  had  a  Presi- 
dent who  could  command  the  respect  of  any  rational  being  ? 
Were  Buchanan,  Pierce,  Polk,  Harrison,  and  Taylor,  fair  rep- 
resentatives of  the  American  heart  and  intellect?  Since  Clay, 
Webster  and  Calhoun  left  Congress,  how  is  it  that  eloquence 
and  wisdom,  knowledge  and  culture,  have  left  it  also,  and  that 
its  debates,  with  few  exceptions,  have  inspired  nothing  but 
loathing  and  contempt?  Why  is  it  that,  plunged  suddenly 
into  a  stormy  sea  of  peril,  one  man  only,  in  public  station, 
and  he  a  stranger,  attracts  the  respect  and  confidence  of  the 
people,  and  that  we  open  each  day's  report  of  the  proceedings 
of  Congress,  not  with  hope,  but  with  dread  ?  Why  is  it  that, 
not  mediocrity  of  talents,  morals,  and  attainments,  but  a  lower 
level  than  mediocrity,  is  the  rule  of  ofiicial  station ;  and  that 
now,  as  for  many  years  past, — 

"  It  sounds  like  stories  from  the  Land  of  spirits, 
If  any  man  obtain  that  which  he  merits, 
Or  any  merit  that  which  he  obtains?" 

These  evils  are  the  work  of  nominating  conventions,  badly 
organized, — of  a  secret,  silent,  irresponsible  power,  born,  in- 
deed, of  an  inevitable  necessity,  but  unknown  to  the  Constitu- 
tion and  ungoverned  by  law,  which  has  woven  its  network  of 
invisible  chains  around  the  mind  of  the  people  till  they  cannot 
stir,  except  at  its  bidding.  Nominating  conventions  and  their 
nominees  form,  in  fact,  an  association  of  affiliated  societies, 
which  has  taken  into  its  charge  the  government  of  parties,  and 


D  E  M  0  C  11 A  C  Y.  349 

therefore  of  the  nation.  Under  its  fosterino;  care  the  foul  wa- 
ters  of  corruption  have  inundated  every  department,  avenue 
and  crevice  of  our  politics,  and  its  reckless  hand  laid  and  fired 
the  train  which  has  exploded  the  passions  of  the  people  into  a 
widcspreading  conflagration  of  war. 

Carlyle  lias  well  said:  "Given  the  men  a  people  choose, 
the  people  itself,  in  its  exact  worth  and  Avorthlessness,  is  given. 
A  heroic  people  chooses  heroes  and  is  happy  ;  a  valet  or  flunkey 
people  chooses  sham  heroes,  what  are  called  quacks,  and  is  not 
happy.  The  grand  summary  of  a  man's  spiritual  condition, 
what  brings  out  all  his  herohood  and  insight,  or  all  his  flunkey- 
hood  and  horn-eyed  dimness,  is  this  question  put  to  him,  What 
man  dost  thou  honor  ?  What  is  thy  ideal  of  a  man  or  nearest 
that  ?  So,  too,  of  a  people.  .  .  .  Nor  are  electoral  methods, 
reform  bills  and  such  like,  unimportant.  A  people's  electoral 
methods  are,  in  the  long  run,  the  express  image  of  its  electoral 
talent ;  tending  and  gravitating  perpetually,  irresistibly,  to  a 
conformity  to  that,  and  are  at  all  stages  very  significant  of  the 
people." 

The  electoral  method  called  nominating  conventions,  as  at 
present  constituted,  is  not  the  "express  image"  of  the  mind 
and  character  of  the  American  people,  fortunately  for  us  and 
for  the  experiment  of  Democratic  Government.  They  submit 
to  it  of  necessity.  Some  electoral  method  they  must  have,  and 
no  wise  man  has  yet  appeared  to  suggest  a  better  or  to  alter 
or  improve  the  present.  It  has  not  offered  to  the  people  men 
whom  they  can  honor,  but  has  fallen  far  short  of  their  ideal. 
So  far  from  honoring  the  quacks  and  shams  often  presented  to 
them  by  the  conventions,  the  Government  had,  before  the  war, 
fallen  into  contempt.  Confidence  and  respect  have,  for  many 
years,  been  leaving  it  rapidly,  and  with  them  power.  Nothing 
is  more  common  than  complaints  of  the  action  of  the  conven- 
tions. Parties  are  sometimes  defeated  because  of  the  infamous 
character  of  the  nominations.  Thousands  refuse  to  vote  at 
all,  unable  to  decide  between  degrees  of  incompetence  and 
shades  of  guilt.  At  length,  during  the  last  administration, 
corruption  and  imbecility,  ignorance  and  baseness,  brought 
public  affairs  to  such  a  pass   that  the  party  in  power  broke 


350  THE    TRIAL    OF    THE     CONSTITUTION. 

down  amid  the  universal  derision  and  scorn  of  the  people. 
The  election  of  Mr.  Lincoln  was  a  protest  of  the  revolted  con- 
science of  the  country  against  the  foul  abuses  of  the  Govern- 
ment. The  war  is  another  protest  of  a  similar  kind.  The 
f^rcat  uprising  of  the  nation  is  a  proof  that  the  electoral  ma- 
chine has  not  worked  well ;  that  if  it  winnows  the  opinions  of 
the  people,  it  gives  them  not  the  grain  but  the  chaff,  and  that 
some  other  machine  is  imperatively  demanded  to  represent 
their  intelligence  and  moral  sentiment. 


The  present  hour  is  full  of  signs  and  warnings  for  our  in- 
struction. It  is  a  product  of  all  the  past,  it  contains  the  seeds 
of  the  future.  It  is  for  us  to  heed  its  monitions,  to  study  its 
lessons,  to  answer  its  questions.  Let  us  know  one  thing  for 
certain,  that  our  public  and  political  life  of  the  recent  past  is 
a  dead  carcass  that  poisons  the  air,  and  must  be  buried  forever 
out  of  sight.  Somehow  or  other  the  voice  of  the  people  must 
be  permitted  to  sound  and  must  be  obeyed ;  their  convictions 
and  feelings  must  be  expressed  and  must  rule,  or  peace  and 
union,  order  and  liberty,  cannot  be  restored  and  preserved. 
Abuse  of  Executive  patronage,  official  venality,  partisan  alli- 
ance with  slavery  and  the  sway  of  demagogues  must  cease  or 
we  are  lost.  We  have  been  called  a  prosperous  and  contented 
anarch}'.  But  we  are  no  longer  prosperous  and  contented. 
We  have  made  idols  of  cotton  and  corn,  of  negroes  and  cent 
per  cent,  and  fallen  down  and  worshipped  them,  and  now  we 
feel  tlie  vengeful  arrows  of  the  Lord. 

Wealth  is  poverty  and  prosperity  calamit}^,  when  the  invi- 
sible and  spiritual  guides  arc  no  longer  obeyed,  for  they  alone 
lead  to  happiness  and  peace.  "  Be  not  deceived;  God  is  not 
mocked  ;  for  whatsoever  a  man  soweth  that  shall  he  also  reap. 
lie  that  soweth  to  the  flesh  shall  of  the  flesh  reap  corruption." 
AikI  what  is  corruption  l)ut  deatli ;  death  to  the  soid  of  a  man, 
death  to  the  honor,  the  glory,  the  power,  the  liberty  and  the 
true  life  of  a  nation.  History  records  many  such  deaths. 
Our  American  society  has  been  described  as  anarchy,  plus  the 


DEMOCRACY.  351 

street  constable.  Anarchy  of  opinion,  of  passion,  of  sections 
and  parties  we  have  long  had  for  want  of  a  true  Government. 
We  shall  not  long  keep  even  the  street  constable,  unless  some 
means  be  speedily  discovered  to  restore  respect  to  the  autho- 
rity of  the  law,  by  making  those  who  exercise  it  respectable. 


What  is  democracy?  Is  it,  according  to  the  generally  re- 
ceived opinion,  the  government  of  the  laboring  classes,  and  the 
disfranchisement  of  property  and  cultivated  intelligence  ?  If 
so,  democracy  is  the  government  of  a  privileged  order,  and 
that  the  least  fit  to  govern.  Aristocracy  or  monarchy  would  be 
far  better  ;  oligarchy,  or  the  government  of  mere  wealth,  could 
not  be  much  Avorse.  Acquired  property  is  the  symbol  of  energy, 
intelligence  and  active  usefulness  ;  knowledge  is  the  highest  at- 
tainment  and  distinction  that  man  can  reach  ;  each,  if  not 
entitled  to  rule,  has  a  right  to  a  fair  share  of  power  over 
society  ;  nor  can  they  be  excluded  from  it  without  destroying 
civilization. 

The  definition  of  democracy,  therefore,  as  the  tyranny  of 
mere  numbers,  cannot  be  accepted  by  the  American  people. 
Though  less  immediately  destructive  here  than  in  Europe,  it 
would  check  our  progress  in  all  liberal  pursuits,  and  in  time 
undermine  society  by  the  eating  canker  of  corruption.  Pro- 
perty, if  denied  a  representation,  will  protect  itself  by  bribery, 
and  the  tribunes  of  the  mere  multitude  would  be  tempted  to 
seek  office  for  the  sake  of  illicit  gain.  Already  the  tendency 
to  this  degradation  is  clearly  marked  in  our  politics.  The  true 
idea  of  democracy,  the  only  one  consistent  with  liberty  and 
civilization,  is,  that  it  is  the  government  of  society  by  the 
whole  people  ;  not  by  the  rich  or  the  poor,  the  learned  or  the 
ignorant ;  that  all  men,  as  men,  have  rights  to  be  protected 
other  than  the  rights  of  property  or  education,  just  pride  to 
be  gratified,  and  intelligence  worthy  to  be  exercised  and  con- 
sulted. Where  the  great  body  of  a  people  are  able  to  feel  and 
appreciate  these  wants,  that  people  is  fit  for  democracy.  To 
be   governed  by  others  implies  inferiority ;  and  inferiority, 


352  THE    TRIAL    OF    THE    CONSTITUTION. 

where  it  exists,  must  be  and  ought  to  be  so  governed.  All 
men  have  equal  rights  to  justice,  but  even-handed  justice  will 
not  bestow  upon  all  men  equal  power,  because  those  who 
cannot  use  it  discreetly  Avill  abuse  it  to  the  injury  of  others, 
which  is  not  justice.  Intelligence  only  has  a  right  to  govern, 
because  intelligence  only  can  perceive  truth,  and  truth  rules 
by  Divine  right  on  earth  and  in  heaven. 

Find  out  in  a  State  a  class  exclusively  intelligent,  and  that 
class  should  have  exclusive  power.  Find  out  a  man  supremely 
wise  and  good,  and  what  can  we  do,  as  Aristotle  says,  but  de- 
liver ourselves  up  to  him  as  his  subjects  and  servants.  Thence 
hero-worship.  Such  instinctive  reverence  have  we  for  great- 
ness and  goodness,  that  when  we  see  them  manifested  in  a 
man,  or  only  think  we  see  them,  we  are  eager  to  trust,  honor 
and  obey  him.  Thence  also  the  Grecian  ostracism,  explained 
by  Aristotle  on  the  same  principle.  The  best  and  wisest  man 
is  far  from  supreme  in  wisdom  or  goodness,  therefore  not  to  be 
trusted  with  absolute  power ;  but  an  approximation  to  both, 
excites  such  lively  admiration,  as  to  be  dangerous  to  liberty ; 
and  the  Greeks  could  find  nothing  better  to  do  with  a  great 
man  than  to  banish  him,  to  prevent  him  from  becoming  a 
tyrant.  The  difficulty  is  to  find  a  class  in  which  the  intelli- 
gence wortliy  to  govern  resides.  In  Europe  they  know  very 
well  in  what  class  it  does  not  reside,  and  they  cling  to  their 
monarchies  and  aristocracies.  In  our  Southern  States  the 
people  know  that  it  does  not  reside  in  the  negro  race,  and 
therefore  they  exclude  it  from  power.  But  in  the  North,  who 
can  classify  the  people  so  as  to  distinguish  between  the  igno- 
rance and  poverty  that  ought  to  obey  and  the  knowledge  and 
wealth  that  ought  to  govern  ?  No  such  classification  is  possi- 
ble. As  already  stated,  property  and  education  are  so  widely 
diffused,  and  every  order  of  society  participates  so  generally 
in  both,  that  no  dividing  line  can  be  drawn.  Poverty  and 
ignorance  exist,  undoubtedly,  and  perhaps  may  be  considered 
as  the  permanent  characteristics  of  some  small  sections  of  the 
people,  but  they  are  so  small,  that  they  may  easily  be  con- 
trolled by  the  predominant  intelligence  of  the  rest,  without  in- 
vidious and  dangerous  distinctions,  if  the  proper  machinery, 


BEMOCRACY.  353 

the  electoral  methods,  were  provided  to  represent  an.d  execute 
the  intelligent  will  of  the  community. 

Nominating  conventions  have  already  been  discussed  as  one 
of  those  methods,  which  have  been  grossly  abused,  indeed,  in 
practice,  though  they,  no  doubt,  have  been  productive  of  much 
good,  and  might  be  made  efficient  engines  to  place  honesty 
and  ability  in  power.  They  should  be  so  constructed  as  to 
become  well-chosen  local  committees,  appointed  by  the  people 
to  do,  what  they  cannot  do,  find  out  who  in  a  district  are  fit 
to  be  trusted  with  official  authority  and  to  present  them  when 
found  to  the  people. 

Equal  and  universal  suffrage  is  another  electoral  method 
employed  to  carry  out  the  principles  of  democracy,  generally 
mistaken  for  democracy  itself,  and  indeed  the  cause  of  much 
of  the  dread  which  it  inspires.  Universal  and  equal  suffrage 
does  not  fairly  represent  society  and  bring  into  action  all  the 
elements  of  its  power.  In  Europe,  Avhere  the  masses  are  poor 
and  ignorant,  and,  as  a  general  rule,  remain  so  from  genera- 
tion to  generation,  if  each  man  had  a  vote  the  government 
would  be  thrown  wholly  into  the  hands  of  the  most  numerous 
class,  and  the  just  claims  of  education  and  property,  to  at  least 
equality,  would  be  denied.  But  inequality,  not  equality,  is 
the  law  of  nature,  and  differences  of  social  position  are  the  re- 
sults and  tokens  of  disparities  of  mind  and  character.  Men 
are  not  equivalent  in  value  one  to  another,  and  any  Govern- 
ment which  disregards  natural  differences  and  violates  natural 
laws  cannot  succeed.  It  is  manifestly  absurd  to  give  equal 
influence  in  public  affairs  to  ignorance  and  knowledge,  to  vice 
and  virtue,  to  pauperism  and  wealth,  and  a  government  that 
did  so  would  be  founded,  not  on  truth,  but  on  falsehood. 

Universal  suffrage,  moreover,  throws  all  power  into  the 
hands  of  a  majority,  or  wdiat,  from  the  returns  of  an  election, 
may  appear  to  be  a  majority.  The  rights  of  a  minority,  how- 
ever large,  are  disregarded,  and  for  this  reason  the  tyranny 
of  a  majority  is  justly  dreaded  as  the  vice  of  democracy. 
Where  parties  are  nearly  equal,  a  very  small  number  holds 
the  balance  of  power,  and  may  decide  questions  of  deep  im- 

23 


354  THE    TRIAL    OF    THE     CONSTITUTION. 

portancc ;  and  that  small  number  may  be  gained  by  terror  or 
fraud,  or  may  be  apparent  only  because  of  false  returns,  or 
opinions  may  be  imputed  to  a  real  majority  which  only  a  small 
portion  of  it  entertain,  all  which  have  happened  repeatedly  in 
our  practice.  It  is  no  reply  to  this  to  say  that  a  defeated 
party  can  wait  till  the  next  election  and  will  then  have  a 
chance  to  win  the  people  to  its  side.  In  the  interval  injury 
irreparable  may  be  done,  and  even  the  Government  itself  be 
attacked  by  rebellion,  as  our  recent  experience  proves.  The 
absolute,  unchecked  sway  of  a  mere  majority  violates  the  prin- 
ciple of  equal  rights,  which  is  the  true  principle  of  democracy. 
It  is  not  the  Government  of  the  whole  but  of  a  part,  for  the 
voice  of  a  part  in  the  public  councils  is  silenced  for  a  time  at 
least,  and  it  may  be  at  a  critical  period,  big  with  the  destiny 
of  the  nation. 

These  and  other  defects  of  universal  and  equal  suffrage,  as 
a  means  of  expressing  and  carrying  out  the  real  opinions  of 
the  people  with  fairness  to  all  interests  and  classes,  have  been 
pointed  out  in  recent  English  writings  on  political  science, 
more  especially  by  Mr.  John  Stuart  Mill,  in  his  very  able 
work  on  Representative  Government.  Various  remedies  have 
been  suggested  by  which  the  dreaded  dangers  of  approaching 
democracy  in  England  may  be  averted,  the  consideration  of 
which  would  be  beyond  the  scope  of  this  essay.  Thinkers  and 
scholars  are,  in  that  country,  engaged  earnestly  in  discovering 
and  explaining  the  true  principles  of  free  government,  so  that 
inevitable  changes  may  be  gradual  and  the  destructive  shock 
of  revolution  be  avoided. 


Our  Constitution  fortunately  presents  no  obstacle  to  im- 
provements suggested  by  thought  or  experience,  in  reference 
to  suffrage.  The  evils  of  the  past  prove  that  some  alterations 
are  necessary  to  enable  the  people  really  to  govern.  This  war 
is  ac.  effort  on  the  part  of  the  people  to  make  themselves  heard 
and  obeyed.     It  would  never  have  happened  had  their  Avishes 


DEMOCRACY.  355 

been  represented  by  tbe  Government.  They  have  risen  in 
their  might,  and  broken  through  party  ties  to  shake  off  the 
abominable  rule  of  demagogueism.  The  spirit  and  intelligence, 
the  noble  enthusiasm  they  have  displayed,  prove  that  power  is 
safely  lodged  in  their  hands  if  they  could  find  out  how  to  apply 
it.  But  neither  the  power  of  the  people  nor  of  steam  can  be 
made  available  without  an  engine  to  regulate  and  direct  it. 
We  have  invented  admirable  machines  for  steam  power,  but 
those  yet  contrived  for  popular  power  have  been  found  worth- 
less. They  will  not  work,  nay,  they  explode,  scattering  around 
them  wounds  and  death.  The  difiiculty  is  to  get  a  machine 
that  will  do  its  work.  Furnish  one  to  the  people,  and  they 
will  be  able  to  use  it,  but  they  cannot  make  one.  Inventors 
are  rare.  Workmen  who  can  manage  the  steam-engine,  the 
telegraph,  the  cotton  gin,  the  printing  press  are  plenty  enough, 
but  these  wonderful  instruments  were  each  the  happy  thought 
of  a  gifted  mind,  such  as  nature  does  not  produce  in  crowds. 
The  machine  called  a  government,  is  a  higher  product  of  human 
wit  than  any  of  these.  So  high  and  difficult  a  work  is  it  in- 
deed, that  not  one  man  or  set  of  men,  however  wise,  but  gene- 
rations of  the  wisest  are  necessary  to  perfect  it,  by  minute 
alterations  and  improvements,  through  ages  of  constant  effort. 
Our  fathers  inherited  the  English  Constitution,  long  tried  and 
gradually  perfected  by  thoughtful  toil.  With  reverent  care 
they  preserved  what  they  could  of  it.  With  anxious  delibera- 
tion they  altered  it,  and  added  to  it,  according  to  the  impera- 
tive demands  of  new  circumstances.  But  those  sages  were  not 
infallible,  nor  did  they  pretend  to  be.  They  did  not  make 
their  work  a  fetter  upon  the  intellect  of  the  future ;  on  the 
contrary,  they  left  it  elastic,  pliable,  and  open  to  amendments 
suggested  by  new  wants  and  advancing  knowledge.  The  press- 
ing want  now  is,  some  electoral  method  to  render  universal 
suffrage  consistent  with  equal  rights,  and  to  express  the  will 
and  moral  convictions  of  the  people.  The  people  cannot  act 
directly.  They  must  of  necessity  act  indirectly.  To  supply 
this  necessity  nominating  conventions  have  been  adopted.  But 
who  is  to  nominate,  who  does  nominate  the  members  of  these 


350  Tin:     TRIAL     OF     THE     CONSTITUTION. 

conventions  ?  Somebody  must,  for  the  people  cannot.  They, 
indeed,  can  scarcely  be  said  to  elect  them.  They  are  nomi- 
nated bv  party  leaders,  who  become  leaders  nobody  knoAvs  how, 
and  who  have  neither  legal  duties  nor  responsibilities.  Either 
the  Avhole  system  must  be  abolished  or  it  must  be  reformed, 
so  that  capacity  and  integrity  may  preside  over  these  conven- 
tions. The  law  cannot  say  who  shall  be  members  of  them,  but 
it  may  say  who  shall  not  be.  It  may  require  some  qualifica- 
tions that  would  be  a  guarantee  of  character,  and  prevent  the 
disgraceful  spectacle  of  members  begging  and  receiving  offices 
from  their  own  nominees.  The  electoral  colleges  provided  in 
the  Constitution  for  the  choice  of  a  President  aiford  suggestions, 
bv  which  the  conventions  might  be  moulded  into  fit  machines 
for  drawing  forth  the  intelligence  and  carrying  into  effect  the 
wishes  of  the  people.  Ample  power  over  the  subject  is  conferred 
on  Congress,  by  Section  4,  Article  1,  of  the  Constitution. 


This  war  is  a  test  of  the  Constitution,  and  will  hardly  pass 
away  Avithout  introducing  changes  in  our  Government.  Great 
moral  forces  have  been  stimulated  to  violent  action,  free  scope 
has  been  given  to  the  pent  up,  but  long-brewing  elements  of 
strife,  and  when  the  wild  uproar  has  subsided,  we  can  scarcely 
expect  the  regular  and  normal  movement  of  our  system  to  be 
resinned.  The  restoration  of  the  Union  is  still  doubtful,  not- 
withstanding the  victorious  progress  of  the  Northern  arms.* 
Our  generals  wherever  they  go  proclaim  peace,  protection  and 
friendship  to  the  Southern  people,  and  offer  them  their  former 
p(»sition  under  the  old  flag.  They  are  received  with  every 
manifestation  of  bitter  hatred  ;  the  very  women  revile  and  spit 
u|)on  them  as  they  pass.  Demonstrations  of  loyal  sentiments 
liave  been  as  yet  feeble  and  few.  No  doubt  the  opinions  of 
many  are  repressed  by  the  reign  of  terror  established  by  the 
rebel  government,  and  will  become  manifest  when  its  power  is 

*  May  31. 


DEMOCRACY.  357 

destroyed.  Probably  also  the  hopelessness  of  their  cause  and 
the  obvious  benefits  of  the  Union,  may  bring  back  to  it  the  re- 
luctant oligarchy.  But  slavery  Avill  remain,  unless  destro^^ed 
by  the  war,  and  with  it  the  spirit  of  caste  and  sectional  inte- 
rests. Is  union  possible  with  a  people  thus  alienated  and 
hostile?  If  with  sullen  reluctance  they  yield  to  necessity  and 
return,  will  they  not  for  many  years  be  dangerous  in  peace, 
and  more  dangerous  in  war  ?  Would  they  not  bring  back 
with  them  all  the  old  feuds  and  hates,  would  they  not  sympa- 
thize with  an  enemy  and  welcome  a  foreign  invader  ?  Can 
we  conquer  them  and  hold  them  in  subjection  by  military  force  ? 
Would  that  be  justice,  would  it  be  a  real  Union,  would  it  not 
alter  the  character  of  our  Government,  and  end  in  the  over- 
throw of  republican  institutions  ?  But  shall  we  let  them  erect 
an  independent  nation  in  the  South,  and  thus  rob  us  of  our 
Southern  territory,  with  its  coasts  and  ports  and  cotton  and 
the  Mississippi,  and  establish  on  our  border  an  unfriendly 
power,  ready  at  any  moment  to  become  formidable  by  European 
alliances  ?  And  what  shall  we  do  Avith  slavery  ?  Can  we  re- 
tain and  protect  it,  in  the  Union,  as  before  ?  Would  it  not 
again  become  a  source  of  discord,  an  element  of  party  power, 
and  cause  new  rebellions  and  wars  ?  Will  it  not  do  this  either 
in  or  out  of  the  Union  ?  Should  the  present  contest  end  in 
separation,  where  can  the  line  be  drawn  ?  If  slavery  be  in- 
cluded in  the  Northern  section,  then  slavery  would  always  be 
an  element  of  danger,  for  it  would  always  be  really  the  ally, 
as  it  now  is  in  the  Border  States,  of  our  Southern  enemies.  If 
the  line  be  drawn  north  of  slavery,  then  the  Southern  Con- 
federacy would  become  a  formidable  rival  to  the  Northern.  Is 
it  possible  immediately  to  abolish  slavery  consistently  with 
justice  and  humanity,  or  at  all  ?  Is  it  possible  to  retain  it, 
and  at  the  same  time  satisfy  Southern  demands  and  Nortliern 
opinion  ?  These  and  other  problems  the  swift  hours  are  bring- 
ing to  test  our  prudence  and  firmness  and  wisdom.  They  are 
more  difficult  to  dispose  of  than  the  war.  They  imply  another 
question  graver  than  any, — has  the  power  to  cope  with  such 
difficulties  been  provided  in  the  Constitution  ?     Can  they  be 


353  THE    TRIAL    OF    THE     COXSTITUTIOX. 

dealt  witli  1)V  universal  suffrage,  nominating  conventions  and 
quadrennial  Presidents?  These  have  guided  us  into  our 
troubles ;  Avill  they  guide  us  out  of  them  ? 


It  cannot  be  denied  that  the  future  is  clouded  by  doubt. 
"We  have  been  for  many  years  sowing  the  wind,  and  are  now 
reaping  the  whirlwind.  Not  Avith  impunity  does  a  people 
hasten  to  be  rich,  and  foolishly,  Midas-like,  pray  that  every- 
thing it  touches  may  be  turned  into  gold.  On  truth,  justice 
and  knowledge,  not  on  cotton,  corn  and  negroes,  must  the 
greatness  and  glory  of  a  nation  be  founded.  Spiritual  causes 
work  in  silence  and  in  secret,  until  at  length  they  reveal 
themselves  in  startling  and  inexorable  facts.  "  The  feet  of 
the  avenging  deities  are  shod  with  wool."  We  have  filled  our 
barns  with  plenty,  and  said,  "  Let  us  take  our  ease,  eat,  drink, 
and  be  merry ;"  when  suddenly,  a  voice  from  heaven  has  cried, 
"  Thou  fool,  this  night  thy  soul  shall  be  demanded  of  thee  ; 
then  whose  shall  those  things  be  which  thou  hast  provided?" 
Whose  indeed !  Shall  they  belong  to  a  nation  once  known  as 
the  United  States,  or  be  partitioned  among  several  nations,  or 
shall  they  become  the  prey  of  a  foreign  spoiler  ?  "  The  mills 
of  God  grind  slowly,  but  they  grind  to  powder." 

The  punishment,  as  yet,  has  chiefly  fallen  where  it  was 
most  merited,  on  the  arrogant,  overbearing,  selfish,  sordid  and 
sectional  South,  slave-trading,  slave-breeding,  and  worshippers 
of  slavery  and  cotton.  But  many  a  Northern  home  has  been 
clouded  by  grief,  and  a  heavy  load  of  taxation  and  debt  has 
been  imposed  on  the  Northern  people.  As  a  compensation, 
however,  their  intelligence  and  force  of  character  have  been 
developed,  their  finest  emotions  have  been  touched,  and  they 
have  shown  that  amid  their  busy  industry,  the  divine  fire  of 
feelino;  and    enthusiasm    has  not  been  extiniifuishcd  in  their 

O  CD 

hearts.  The  Northern  people  now  know  themselves  better 
than  they  ever  did  before,  their  capacity,  their  strength  and 
courage.     They  know  that  they  can  trust  each  other.     They 


DEMOCRACY.  359 

know  that  they  have  a  nation  to  preserve,  and  they  are  de- 
termined to  preserve  it  if  they  can. 

It  ■will  not  be  an  easy  task,  and  he  is  a  bold  man  that 
ventures  to  predict  that  it  Avill  be  accomplished.  Our  courage 
is  screwed  to  the  sticking-point,  yet  we  may  fail,  and  fail  too 
in  spite  of  victories  on  fields  of  battle.  It  needs  no  prophetic 
inspiration,  however,  to  feel  sure  that  this  Northern  people  will, 
in  the  Union  or  out  of  it,  continue  to  advance  in  wealth  and 
power,  in  science  and  the  arts  of  peace  and  war ;  that  they 
will  till,  cultivate  and  adorn  the  vast  and  fertile  regions  they 
possess,  and  cover  them  with  the  works  of  aspiring  civilization  ; 
that  they  will  continue  to  be  a  free  people,  and  under  all 
changes  of  form,  preserve  the  scope,  the  spirit  and  the  action 
of  Republican  Government.  They  cannot  do  otherwise. 
These  thing-s  are  the  outsi-rowths  of  their  race,  run  in  their 
blood,  beat  in  their  hearts,  and  form  the  texture  of  their 
thoughts.  Our  Constitution  did  not  give  us  liberty,  but  the 
spirit  of  liberty,  the  Constitution.  Freedom  of  speech,  free- 
dom of  the  press,  freedom  of  worship,  security  of  person  and 
property  are  in  it,  and  as  defences  of  these,  trial  by  jury,  the 
writ  of  Habeas  Corpus  and  representative  Government. 
These  were  put  into  the  Constitution,  because  they  were  al- 
ready in  the  minds  and  hearts  of  those  who  made  it.  They 
have  remained  in  the  Constitution,  because  they  have  been 
cherished  in  the  minds  and  hearts  of  those  who  have  lived 
under  it.  Abolish  the  Constitution  to-morrow  and  these 
principles  would  create  another  like  it,  if  they  remained  in 
the  thoughts  of  the  people.  Change  the  sentiments  and 
character  of  the  people,  convert  them  into  French  Celts  or 
Irish  Celts  or  Russians  or  Sclavonians,  and  the  Constitution 
Avould  become  a  dead  letter,  without  force  or  meaning. 
Forms  are  useful  only  as  manifestations  and  instruments  of 
the  informing  spirit.  When  that  spirit  dies,  forms  become 
the  rubbish  of  the  past.  Among  a  progressive  people,  old 
ideas  like  old  men,  are  always  passing  away,  and  new  ideas 
rising  with  new  generations.  Thus  all  things  change,  but 
always  we  have  both  the  old  and  the  new,  sober  age  clinging 


360  THE    TRIAL    OF    THE    CONSTITUTION. 

to  the  past  and  restraining  rash  ^^outh,  too  eagerly  rusliing  on 
the  future.  So  should  it  be  in  Government.  New  forms  are 
not  easily  invented,  even  when  necessary,  to  serve  a  growing 
and  advancing  people.  We  should  therefore  retain  the  old 
that  have  been  tested  by  experience,  as  long  as  we  can, 
modify  them  with  caution  to  suit  new  conditions,  and  in  inte- 
rests so  momentous  as  those  that  depend  on  the  organic  laws 
of  Government,  "Prove  all  things;  hold  fast  to  that  which  is 
good." 


APPENDIX. 


Note  to  Page  284. 


THE  PRESIDENT'S  PROCLAMATION  OF  SEPTEMBER  22, 

1862. 

The  Proclamation  issued  by  the  President,  September  22d,  1862, 
is  the  most  memorable,  and  may  prove  the  most  important  event  of 
the  war.  It  draws  a  clear  line  between  the  past  and  the  present,  and 
marks  the  progress  of  opinion.  When  the  war  began,  slaves  escaping 
to  our  lines  were  returned  to  their  masters.  Afterwards,  with  hesita- 
tion, they  were  received  and  employed  as  laborers,  but  our  Generals 
who  proposed  to  invite  them  to  escape,  or  to  arm  them  as  soldiers  in 
our  cause,  were  disavowed  and  rebuked.  This  forbearance,  however, 
produced  no  effect  on  the  Southern  people.  Their  vindictive  hatred 
increased,  and  the  rebellion  waxed  in  strength.  With  it  grew  the 
determination  of  the  North.  At  last,  slowly,  very  slowly,  men  began 
to  say :  "  Slavery  was  the  cause  of  the  war ;  why  should  we  protect 
slavery  ?  It  gives  strength  to  the  rebels,  who  are  endeavoring  to 
destroy  our  country,  who  have  filled  our  homes  with  mourning,  and 
imposed  on  us  a  heavy  burden  of  debt  and  losses;  who  have  not 
hesitated  to  lay  their  hands  on  any  Northern  property  they  could  find, 
to  inflict  on  us  every  injury  in  their  power.  What  is  there  in  sla- 
very so  sacred  or  so  beautiful,  that  it  should  be  exempt  from  the  laws 
or  the  fortunes  of  war  ?  Slavery  is  protected  by  the  Constitution 
indeed,  but  men  who  have  cast  off  the  Constitution,  who  defy  it,  who 
seek  its  overthrow,  cannot  surely  claim  its  protection.  The  Southern 
people   have   attacked   our  Government.      We  are  waging   against 


362  APPENDIX. 

them  a  just  and  necessary  war,  the  object  of  which  is,  by  means  of 
the  destruction  and  suffering  it  causes,  to  conquer  such  a  peace  as 
may  restore  and  secure  our  rights.  Why  then  should  we  not  avail 
ourselves  of  every  means  permitted  by  the  laws  of  war,  to  weaken  our 
enemies  ?  Should  slavery  perish  in  the  conflict,  the  world  will  not 
mourn  its  loss,  and  the  Southern  people  will  have  brought  it  on  them- 
selves." 

Gradually  and  with  diSiculty,  the  events  of  the  war  have  brought 
Northern  sentiment  to  this  point.  So  kind  were  the  feelings  of  the 
people  towards  the  South,  so  profound  their  reverence  for  the  Consti- 
tution, and  so  deeply  rooted  the  idea,  that  as  by  it  slavery  was  guaran- 
teed, it  should  therefore  be  preserved.  These  opinions  have  been 
changed,  and  this  Proclamation  is  the  result.  The  President  himself 
has  been  the  subject  of  a  similar  change,  as  his  whole  course  abun- 
dantly proves.  A  year  ago,  six  months  ago,  he  could  not  have  pro- 
posed such  a  measure,  and  had  he  done  so,  it  would  have  been  re- 
ceived with  general  alarm  and  disapprobation.  Now  it  seems  to  most 
men  a  natural  and  inevitable  result  of  what  has  gone  before. 

It  is,  indeed,  a  very  grave  and  serious  matter,  and  so  is  the  war, 
and  so  will  be  its  consequences.  We  must  prepare  our  minds  to  wit- 
ness great  events  and  great  changes,  for  immense  forces  of  a  charac- 
ter to  cause  both  have  been  set  in  motion.  We  should  try  to  enlarge 
our  vision  so  as  to  see  the  real  dimensions  of  the  things  that  surround 
us,  which  dwarf  all  our  past  experience.  Attorney  logic  and  Court- 
house law  do  not  suit  the  times  we  live  in. 

A  President  of  the  United  States  has  issued  a  decree,  that  all  the 
slaves  in  any  State  in  rebellion  to  the  Government  on  the  first  day  of 
January  next,  shall  be  "thenceforth  and  forever  free,"  and  that 
the  Executive  will  do  no  act  to  suppress  "  any  efi"orts  they  may  make 
for  their  actual  freedom."  Did  any  gifted  seer  behold  this  handwrit- 
ing on  the  wall,  when  Northern  and  Southern  Democrats  combined 
their  forces  to  impose  the  Lecompton  Constitution  on  the  people  of 
Kansas  ? 

The  remarks  in   the  text  on   emancipation   as  a  war  measure,  to 


APPENDIX.  363 

which  this  note  refers,  were  written  in  May  last.  It  must  be  evident 
to  every  reader,  that  the  argument  there  used  does  not  apply  now,  so 
greatly  has  the  position  of  affairs  changed  in  the  interval.  Then,  we 
were  in  a  tide  of  victory.  Since,  we  have  suffered  defeat.  Washington 
has  been  seriously  endangered,  the  Northern  States  invaded.  The 
strength  displayed  by  the  South  has  been  so  great,  that  self-defence 
urges  us  to  adopt  measures,  which  before  were  considered  unneces- 
sary. Six  months  ago  we  still  clung  to  the  hope  that  a  Union  party 
existed  in  the  South,  and  therefore  that  this  war  was  really  waged  as 
at  first  intended,  not  against  the  people,  but  against  a  usurping  fac- 
tion, so  that  any  measures  destructive  to  the  interests,  or  injurious  to 
the  feelings  of  the  whole  people,  would  have  been  at  once  unjust  and 
impolitic.  Now  it  appears  that  all  classes  in  the  South  are  zealous 
and  united  in  supporting  the  rebellion.  The  war,  therefore,  has 
changed  its  aspect.  It  is  no  longer  a  contest  between  a  rightful  Go- 
vernment and  a  rebellious  conspiracy,  but  has  become  necessarily  in 
some  respects,  a  foreign  war  between  two  contiguous  nations.  The 
management  of  the  war  must  therefore  change.  We  are  entitled  to 
all  the  rights  of  belligerents,  else  our  hands  are  tied,  whilst  those  of 
the  enemy  are  free.  The  Southern  people  treat  it  as  a  foreign 
war.  They  have  declared  their  independence,  they  have  formed 
a  government,  they  are  seeking  foreign  alliances,  they  claim  to  be  a 
nation  ;  if  they  succeed,  they  will  be  a  nation.  Surely,  therefore, 
they  cannot  complain  if  we  treat  them  according  to  the  position  which 
they  themselves  assume,  and  employ  against  them  every  means  justi- 
fied by  the  laws  of  nations. 

That  these  laws  authorize  the  Proclamation,  there  can  be  no  doubt. 
If  we  have  a  right  to  wage  the  war  at  all,  we  have  a  right  to  do  any- 
thing, not  contrary  to  the  usages  of  civilization,  to  weaken  the  enemy  ; 
to  seize  property,  public  and  private,  to  ravage  and  destroy  towns  and 
districts,  provided  always  that  such  extreme  measures  be  really  neces- 
sary, and  not  executed  in  wanton  cruelty  or  revenge.*  War  is  a 
stern  and  terrible  remedy.      It  operates   by  means  of  destruction; 

*  Vattel's  Law  of  Nations,  chaps,  viii  and  ix. 


3G4  APPENDIX. 

destruction  of  life,,  of  wealtli,  of  human  happiness.  The  moral  re- 
sponsibility for  the  suffering  it  creates,  is  upon  those  who  unjustly 
wage  it,  and  the  burden  is  heavy. 

If  the  negroes  are  to  be  regarded  as  property  used  by  the  enemy 
in  their  military  operations,  property  which  gives  them  strength  to 
carry  on  the  war,  no  argument  is  necessary  to  prove  that  we  have  a 
right  to  seize  and  appropriate  it  to  our  own  use,  as  much  as  if  it  con- 
sisted of  artillery  or  ammunition.  If  the  negroes  are  to  be  considered 
as  men,  as  inhabitants  of  the  country  invaded,  favorable  to  our  cause, 
and  willing  to  assist  us,  there  can  be  as  little  doubt  that  we  may 
invite  their  assistance,  and  reward  them  for  it  by  pay  and  by  freedom. 
Indeed,  it  would  be  monstrous  to  accept  their  services,  and  then 
return  them  to  slavery.  It  would  be  folly  not  to  accept  their  services, 
not  to  obtain  their  aid,  by  every  inducement  we  can  offer.  Hitherto 
we  have  abstained  from  this,  and  why  ?  Because  we  desired  to  pro- 
tect slavery,  which  has,  in  fact,  been  living  under  our  protection  ever 
since  the  war  began.  We  wished  to  protect  it,  because  we  thought 
we  were  making  war  on  a  conspiracy,  and  not  upon  a  people ;  because 
we  hoped  to  bring  back  that  people  to  the  Union,  with  all  their  rights, 
and  with  as  little  injury  to  their  interests  as  possible.  But  the  whole 
people  have  been  swept  into  the  ranks  of  the  rebellion,  and  have 
forced  us  to  make  a  foreign  war.  Nay,  they  have  proved  strong 
enough  to  invade  us,  to  plunder  our  farms  and  villages.  Are  we  not, 
therefore,  entitled  to  all  the  rights  of  belligerents  ?  Shall  we  fight 
with  foils,  whilst  they  use  sharpened  swords  ?  Negroes  form  the 
strength  of  the  rebellion.  They  do  much  of  the  hard  work  and 
drudgery  of  war.  By  their  labors  on  farms  and  plantations,  they 
enable  the  South  to  send  its  whole  white  population  to  the  field. 
The  negroes  arc  our  friends,  would  gladly  be  our  allies.  They  think 
that  we  come  as  their  friends,  their  liberators.  Their  masters  have 
told  them  so,  though  hitherto  we  have  not.  On  the  contrary,  we 
have  told  them  that  they  had  no  interest  in  this  war.  "Not  for  your 
sakes  is  it  waged,"  we  said  to  them,  "but  for  our  own,  and  however 
it  may  terminate,  you  are  to  be  slaves  as  before." 


APPENDIX.  365 

The  Southern  people  have  driven  us  out  of  this  position.  It  has 
become  absurd  and  ridiculous.  Not  until  it  became  so,  did  we  aban- 
don '\t^,  and  then  with  reluctance.  The  Southern  people  cannot  ex- 
pect us  to  treat  them,  at  the  same  time,  as  friends  and  as  enemies,  as 
fellow-citizens  and  as  aliens.  They  have  assumed  the  character  of 
aliens  and  of  enemies,  and  must  accept  all  its  consequences.  They 
have  confiscated  every  dollar  of  Northern  property  they  could  find. 
Why  should  not  we  do  the  same  thing  with  Southern  property,  more 
especially  if  it  be  contraband  of  war?  We  are  sending  to  the  field 
thousands  of  the  best  and  noblest  of  our  youth.  Why  should  we  not 
employ,  at  least  in  the  labors  of  the  camp,  those  inhabitants  of  the 
South  who  are  willing  to  serve  us  ?  Did  there  exist  in  the  North,  a 
class  of  men  who  sympathized  with  the  rebellion,  who  were  hostile  to 
the  Government,  and  ready  to  rise  in  arms  to  join  the  ranks  of  an 
invading  army,  would  the  rebels  hesitate  about  appealing  to  them  and 
asking  their  aid  ?  Have  they  not  used  Indians  in  this  war  ?  Are 
they  not  endeavoring  to  gain  the  assistance  of  France  and  England  ? 
If  we  wish  to  succeed  we  must  use  the  negroes.  Our  fathers  did  so 
in  the  War  of  Independence.  The  State  of  New  York,  in  1781,  gave 
freedom  to  all  slaves  who  should  serve  in  the  American  army;  and, 
in  1786,  passed  an  act  by  which  all  slaves  were  set  free  who  had 
become  public  property  by  attainder,  or  the  confiscation  of  their  mas- 
ter's estates.* 

All  the  negroes  we  employ,  we  must,  of  course,  set  free.  If  we 
wish  to  obtain  their  services,  we  must  tell  them  they  will  be  free,  that 
they  are  free  in  the  eye  of  this  Government,  which  will  no  longer  re- 
cognize their  slavery  or  use  any  means  to  enforce  it,  provided  their, 
services  shall  be  required.  This  is  what  the  President  says,  and  fur- 
ther than  this,  as  commander  of  the  army  and  navy,  he  could  not  go. 
Even  in  going  thus  far,  he  does  not  depart  from  the  original  design 
and  plan  of  the  war.  He  does  not  treat  the  South  as  a  foreign  nation 
except  in  a  military  sense.     He  offers  peace ;  he  offers  restitution  of 

*  2  Kent's  Commentaries,  206. 


366  APPENDIX. 

all  riirlits.  "Come  back,"  ho  says,  "to  the  Union,  and  take  your 
former  place  in  it,  with  all  its  privileges  and  powers,  even  the  power 
of  a"-ain  governing  us,  if  you  can.  Send  your  representatives  to 
Con""ress.  If  you  do  that  before  the  first  of  January,  this  edict  will 
be  of  no  effect." 

"When  the  President  declared  that  after  the  first  of  January  the 
slaves  in  States  who  had  not  then  sent  representatives  to  Congress 
should  be  free,  he  at  the  same  time  declared  impliedly  that  he  would 
do  nothing  to  keep  them  in  slavery.  He  has  thought  fit  to  say  so  ex- 
pressly, probably  because,  on  a  former  occasion,  he  avowed  his  deter- 
mination to  put  down  any  attempt  at  insurrection.  After  the  first  of 
January  he  will  leave  that  task  to  the  Southern  people.  Willingly 
he  will  leave  it  to  them,  together  with  the  task  of  resisting  our  armies; 
and  if  they  should  find  the  former  the  more  difficult  business  of  the 
two,  so  much  the  better  for  us.  The  President  has  been  charged 
with  an  attempt  to' excite  a  servile  insurrection  by  this  part  of  the 
Proclamation.  The  Southern  people  are  of  course  indignant  at  it, 
and  the  Northern  party,  who  favor  the  South,  are  equally  indignant. 

The  policy  executed  by  the  Proclamation  has  indeed  been  very 
generally  opposed  by  the  generous  and  humane  sentiment  of  the 
Northern  people,  because  they  feared  it  might  spread  throughout  the 
South  the  horrors  of  a  servile  war.  The  sentiment  is  a  just  one. 
We  do  not  war  on  women  and  children,  on  the  weak  and  defenceless. 
The  massacres  of  St.  Domingo  are  yet  fresh  in  the  world's  memory. 
We  have  no  wish  to  see  them  repeated  at  the  South,  and  to  let  loose 
upon  gentleness,  beauty,  innocence  and  refinement,  the  untamed, 
brute  ferocity  of  barbarians. 

Is  such  the  design  of  the  President  ?  He  does  not  say  so.  His 
whole  previous  conduct  proves  the  contrary.  Slavery  is,  at  the  same 
time,  a  source  of  weakness  and  of  strength  ;  of  weakness,  because  in 
war  there  is  always  danger  of  insurrection ;  of  strength,  because  so 
long  as  the  negroes  are  obedient,  they  may  be  employed  both  in  peace- 
ful and  warlike  labors.  We  have  suffered  from  the  vigor  and  eflS- 
cicncy  which  slavery  has  imparted  to  the  Southern  armies.     Confi- 


APPENDIX.  367 

dent  in  our  superior  power,  hoping  always  for  a  display  of  loyal  feeling 
among  the  Southern  people,  we  have  been  content  to  suflFer,  rather 
than  run  the  risk  of  causing  a  desolation,  greater  even  than  that  of 
war,  among  our  countrymen  and  brothers. 

But  events  have  changed  our  position  in  relation  to  this  as  to  other 
points  already  mentioned.  We  find  it  no  easy  task  to  conquer  the 
rebellion,  now  that  it  is  sustained  by  the  whole  Southern  population, 
white  and  black.  When  Mr.  Lincoln  undertook  it,  he  called  for 
seventy-five  thousand  men.  He  has  now  nearly  a  million,  yet  he  has 
been  scarcely  able  to  defend  Washington,  and  not  able  to  defend  the 
Northern  States  from  predatory  invasion.  So  much  power  has  the 
South,  derived  chiefly  from  slavery,  that  it  has  become  evident  that 
unless  we  can  speedily  put  an  end  to  the  war,  we  may  have  a  foreign 
war  also  on  our  hands ;  for  the  nations  of  Europe,  demanding  cotton, 
demanding  the  restoration  of  commerce  to  its  old  channels,  cannot  be 
expected  to  wait  forever  on  our  tardy  operations.  What  then  shall 
we  do  ?  Suffer  ourselves  to  be  conquered  by  slavery  in  war  as  before 
we  were  in  peace  ?  Or  having  felt  the  strength  of  slavery,  shall  we 
make  the  South  feel  its  weakness  ?  By  means  of  the  strength  im- 
parted by  slavery,  the  South  wins  battles  and  protracts  the  war. 
Clearly,  then,  we  are  justified  in  destroying  slavery,  if  we  can,  as  a 
mere  military  measure,  as  much  as  we  are  in  destroying  forts  and 
navy  yards. 

This  is  what  Mr.  Lincoln  proposes  to  do.  He  has  declared  that 
after  the  first  of  January  he  will  recognize  no  such  thing  as  slavery 
in  the  rebellious  South ;  that  if  the  slaves  rise  to  assert  their  freedom 
he  will  not  help  to  put  them  down.  Why  should  he  ?  The  laws  of 
war  do  not  require  it  of  him ;  no  principles  upon  which  it  is  possible 
to  conduct  war  require  it.  He  does  not  say  he  will  send  emissaries 
among  the  negroes  to  instigate-  them  to  revolt ;  that  he  will  arm  them 
for  the  work  of  lawless  havoc ;  that  he  will  stir  them  up  to  massacre 
and  plunder.  But  he  does  say  to  the  Southern  people:  "These 
negroes  have  been  heretofore  to  you  a  source  of  strength  by  reason  of 
my  forbearance.     Naturally  they  are  a  source  of  weakness.     I  give 


368  APPENDIX. 

3-0U  notice  that  henceforward  I  will  treat  them  not  as  slaves,  but  as 
freemen.  That  wherever  I  can,  I  will  set  them  free  and  employ  them 
for  my  purposes,  as  you  have  employed  them  for  yours.  If  they  at- 
tempt to  gain  .their  liberty,  I  shall  not  interfere  to  prevent  it.  That 
is  your  business,  not  mine.  If  you  dread  them,  call  home  your 
armies  from  Tennessee  and  the  Potomac  to  guard  them.  Your  troops 
will  be  euiployed  in  such  duty,  more  to  my  satisfaction,  than  they 
have  been  in  threatening  AVashington  or  invading  Pennsylvania." 

But  the  tendency  of  such  a  Proclamation,  it  may  be  said,  is  to  ex- 
cite insurrection.  Of  course  it  is,  and  so  is  the  tendency  of  the  war. 
No  State  founded  on  slavery  can  engage  in  war  without  the  risk  of  a 
servile  revolt.  That  is  one  of  the  evils  of  slavery.  But  does  it  follow 
from  this,  that  when  such  a  State  is  at  war,  its  enemy  is  obliged  to 
keep  its  slaves  in  subjection  1  On  the  contrary,  may  not  that  enemy 
justifiably  proclaim  liberty  to  the  slaves,  and  leave  to  their  masters 
the  task  of  holding  them  in  bondage,  for  the  very  reason  that  this 
duty  will  embarrass  the  military  operations  of  those  masters,  diminish 
their  forces,  fill  them  with  terror  and  thus  expose  them  to  defeat  ? 
And  .should  an  insurrection  ensue,  who  is  responsible?  Surely  not 
the  military  chief  who  issued  the  Proclamation  according  to  the  laws 
of  war,  any  more  than  he  is  responsible  for  the  misery  and  death  to 
the  innocent,  cau.sed  by  the  falling  of  bombshells  into  a  city  that  re- 
fuses to  surrender.  His  duty  is  to  take  the  city.  The  duty  of  the 
other  side  is  to  defend  it  or  to  give  it  up.  One  of  two  things  the 
Southern  people  must  do  hereafter.  Put  an  end  to  the  war  by  sub- 
mission to  their  lawful  Government,  or  themselves  keep  their  negroes 
in  subjection.  These,  heretofore,  have  shown  no  disposition  to  revolt. 
The  whole  South  is  armed  and  vigilant.  A  general  insurrection  is 
almost  impossible.  The  negroes  are  ignorant,  unarmed,  incapable  of 
combination,  accustomed  to  obey  and  closely  watched.  The  slightest 
manifestation  of  a  disposition  to  rise,  would  be  punished  with  terrible 
severity.  Mr.  Lincoln's  Proclamation  is  far  more  dangerous,  in  this 
point  of  view,  to  the  blacks  than  to  the  whites.  It  is  not  likely  to 
cause  an  insurrection,  but  it  may  excite  the  dread  of  one,  and  thus 


APPENDIX.  369 

weaken  the  military  power  of  the  South.  It  is  a  military  measure 
intended  to  produce  that  effect.  It  is  a  military  measure  put  off  as 
long  as  possible,  in  the  hope  that  events  might  render  it  unnecessary. 
It  became  necessary  to  save  us  from  invasion,  from  foreign  interven- 
tion and  perhaps  from  foreign  war. 

Let  it  be  granted,  however,  for  the  sake  of  argument,  that  the 
danger  of  an  insurrection,  excited  by  this  act  of  the  President,  is 
serious, — that  it  is  even  unavoidable.  It  surely  cannot  be  pretended 
that  Mr.  Lincoln  means  or  desires  to  cause  such  a  result,  when  he 
gives  ample  notice  of  the  intended  measure,  and  at  the  same  time 
opens  a  path  by  which  its  dreaded  consequences  may  be  avoided. 
The  shelling  of  a  city  is  a  terrible  act  of  war.  It  necessarily  involves 
the  destruction  of  a  vast  amount  of  property,  and  also  of  lives,  which 
even  war  spares  if  it  can.  The  practice,  therefore,  of  civilized  war- 
fare is,  first  to  demand  a  surrender  of  the  city,  and  if  that  be  refused, 
to  give  time  for  the  removal  of  women  and  children,  and  other  non- 
combatants,  before  the  dread  alternative  is  executed.  Mr.  Lincoln 
has  given  three  months'  notice  of  his  purpose,  during  which  the 
Southern  people  can  prepare  themselves  against  a  servile  revolt. 
They  have  prevented  one  so  far,  in  the  midst  of  a  war,  the  object  of 
which,  the  negroes  believe,  is  to  set  them  free.  It  is  scarcely  proba- 
ble that  Mr.  Lincoln's  paper  proclamation  will  have  such  an  effect  on 
their  minds  that  the  authorities  of  the  South,  forewarned  as  they  are, 
cannot  prevent  the  horrors  of  an  insurrection.  If  they  continue, 
indeed,  to  send  forward  to  the  battle-fields  of  the  war  their  whole 
available  white  population,  the  negroes  might  become  dangerous, 
should  Mr.  Lincoln,  on  the  first  of  January,  tell  them  they  are  free. 
But  let  Mr.  Davis  detail  as  a  home-guard  some  of  the  able  generals, 
such  as  Lee,  Joseph  Johnston,  Beauregard,  Stonewall  Jackson,  and 
others,  and  say  two  hundred  thousand  of  the  brave  troops  that  have 
given  us  so  much  trouble,  and  there  could  be  no  danger.  Is  it  a 
crime  to  force  him  to  do  this  ?  Or  is  it  contrary  to  the  laws  of  war  ? 
Mr.  Lincoln's  Proclamation  has  been  likened  to  the  barbarous  practice 
of  poisoning  wells  and  springs.     But  suppose  it  became  necessary,  in 

24 


370  APPENDIX. 

a  campaign,  to  prevent  the  occupation  of  a  particular  region  ■which 
could  not  be  defendt'd,  and  the  general  in  command  gave  explicit  and 
ample  notice  to  the  enemy  that  the  springs  and  wells  were  poisoned. 
Without  admitting  any  analogy  between  the  cases,  would  not  such 
notice  take  away  the  barbarism  of  the  act,  so  far  as  the  enemy  was 
concerned?  Had  Mr.  Lincoln  intended  to  cause  a  servile  insurrec- 
tion, he  would  not  have  given  three  months'  notice  of  his  design. 
That  the  Proclamation  may,  if  it  can  be  carried  into  effect,  break  up 
the  fabric  of  Southern  society,  destroy  a  large  amount  of  slave  pro- 
perty, derange  the  industry,  and  inflict  heavy  losses  on  the  Southern 
people,  is  no  doubt  true.  But  such  injuries  are  within  the  legitimate 
scope  of  war. 

The  President  has  not  only  given  ample  notice  of  his  purpose,  but 
he  has  ofi'cred  honorable  terms  by  which  its  dreaded  eff'ects  may  be 
avoided.  He  demands  no  mortifying  submission,  no  payment  of  the 
heavy  expense  of  the  war,  no  security  for  the  future.  All  he  asks  is, 
that  they  shall  send  representatives  to  Congress,  whose  votes  may 
perhaps  control  him;  that  they  shall  resume  their  place  in  that 
Government,  by  whose  Constitution,  he  himself  is  bound  to  put  down 
insurrection  ;  under,  which  Government  their  slaves  have  risen  from 
8200  to  81000  each  in  value;  under  which  they  enjoyed,  for  nearly 
a  century,  peace  and  security,  and  made  such  progress  as  Africa  per- 
mitted them  to  make.  Not  very  hard  conditions,  one  would  think, 
to  be  off"ered  to  men  who  are  attempting  to  overthrow  a  Government 
which  conferred  on  them  so  many  benefits,  and  who  have  inflicted  on 
its  people  so  many  injuries. 

There  is  another  way,  not  suggested  by  the  President,  by  which 
the  South  may,  now  and  forever,  avoid  all  danger  from  insurrection, 
and  make  the  negroes  perfectly  safe, — convert  them  perhaps  into 
zealous  co-workers  in  the  war.  The  Southern  people  might  be  before- 
hand with  Mr.  Lincoln,  and  themselves  give  freedom  to  the  slaves. 
This  plan,  indeed,  would  not  please  the  ruling  classes  in  the  South. 
The  two  billions  wuuld  rise  up  in  all  their  majesty  to  forbid  it.  But 
necessity  is  a  hard  master.     If  they  have  to  choose  between  the  two, 


APPENDIX.  371 

the  way  proposed  is  better  than  insurrection  ;  it  is  better  than  to  have 
the  negroes  freed  by  Mr.  Lincoln.  If  the  destruction  of  slavery  be 
inevitable,  and  it  looks  so  now,  would  it  not  be  wise  to  yield  to  the 
inevitable,  and  thus  control  it,  by  doing  themselves,  in  their  own 
way,  and  with  such  precautions  as  their  experience  may  suggest,  what 
otherwise  will  probably  be  done  for  them,  not  in  their  own  way  ? 

By  this  course  they  would  gain  many  solid  advantages,  whilst  the 
loss  would  be  apparent  only.  The  two  billions  are  rapidly  becoming 
ideal, — melting  away  indeed,  like  a  bank  of  snow  before  the  glances 
of  the  sun.  The  negroes  have  become  already  demoralized,  and  will 
become  still  more  so  when  the  President's  decree,  on  the  first  of 
January,  is  fulmined  over  the  South.  It  may  well  be  doubted 
whether  they  will  ever  again  be  contented  in  their  former  condition. 
Why  not  make  a  virtue  of  necessity,  and  set  them  free  at  once?  By 
this  means  the  South  would  satisfy  the  opinion  of  the  age,  and  very 
probably  secure  immediate  recognition  from  Europe.  The  leaders  of 
the  rebellion  would  indeed  lose  the  friendship  of  the  Democratic 
party  in  the  North,  but  the  Southern  people  would  immediately  create 
another  party  in  their  favor,  as  respectable,  and  more  powerful.  Such 
an  act  would  eifectually  take  the  wind  out  of  Mr.  Lincoln's  sails,  and 
do  more  to  weaken  his  armies  than  he  can  do,  either  by  his  Proclama- 
tion or  by  victory,  to  weaken  theirs.  Let  the  Southern  people  con- 
vert the  slaves  into  a  free  peasantry,  or  a  servile  caste, — let  them  take 
out  of  their  code,  out  of  their  manners,  out  of  their  hearts,  the  lie 
that  men  are  property,  which  is  destroying  them,  and  which  dis- 
graces our  Constitution,  and  put  in  its  place  the  radiant  truth  of 
justice,  and  the  muskets  of  our  soldiers  would  drop  from  their  hands, 
the  rifled  cannon  refuse  to  roar.  That  lie  broke  the  Union.  Truth 
would  make  another  and  a  better.  Demagogues,  democrats,  traitors, 
rebel  leaders  and  conspirators,  would  be  swept  away  by  a  rushing 
tide  of  patriotic  joy,  and  the  people.  North  and  South,  would  forget 
the  war,  forget  its  losses,  forget  its  tears,  forget  its  graves,,  forgive  its 
injuries,  and  spontaneously  unite  together  to  celebrate,  with  loud 
acclaim,  the  birth  of  a  new  nation. 


372  APPENDIX. 

But  we  are  not  permitted  .to  hope  for  a  result  so  fortunate.  If  we 
may  judge  from  the  temper  displayed  by  the  Southern  people,  they 
will  neither  send  representatives  to  Congress,  nor  themselves  abolish 
slavery,  before  the  first  of  January.  The  war  must  therefore  con- 
tinue, and  it  must  be  carried  on  according  to  the  laws  of  war.  These 
apply  equally  to  civil  and  foreign  war.  They  have  nothing  to  do 
with  the  wrongs  or  the  rights  involved  in  the  contest,  but  regard 
simply  the  fact  of  war.  These  laws,  the  result  of  the  world's  expe- 
rience, are  so  just  and  true  that  they  enforce  obedience  by  the  diffi- 
culties that  arise  when  they  are  not  obeyed.  The  mistake  we  made 
in  the  beginning  was,  a  refusal  to  acknowledge  the  rebellious  States 
as  belligerents,  from  an  unfounded  fear  that  we  should  thus  recognize 
their  independence,  or  the  justice  of  their  cause.  But  the  laws  of 
war  soon  forced  us  out  of  that  position.  We  soon  found  that  we 
could  not  treat  their  privateers  as  pirates,  or  their  captured  soldiers  as 
traitors;  that  we  could  not  refuse  to  exchange  prisoners,  or  grant 
parole  to  their  officers,  and  receive  flags  of  truce.  "  When  a  nation," 
says  Vattel,  "  becomes  divided  into  two  parties,  absolutely  indepen- 
dent, and  no  longer  acknowledging  a  common  superior,  the  state  is 
dissolved,  and  the  war  betwixt  the  two  parties  in  every  respect  is  the 

same  with  that  in  a  public  war,  between  two  different  nations 

Thus  there  are  two  bodies,  pretending  to  be  absolutely  independent, 
who,  having  no  judge,  decide  the  quarrel  by  arms,  like  two  different 
nations.  The  obligation  of  observing  the  common  laws  of  war  is 
therefore  absolute,  indispensable  to  both  parties,  and  the  same  which 
the  law  of  nature  obliges  all  nations  to  observe  between  state  and 
state."* 

K  the  laws  of  war  impose  restrictions,  they  also  confer  privileges, 
and  both  are  necessary  to  attain  the  ends  of  war.  We  have  been 
obliged  to  submit  to  the  restrictions,  and  now,  at  length,  we  have 
been  obliged  reluctantly  to  claim  the  privileges.  These  privileges 
permit  us  to  weaken  the  enemy  by  any  means  not  prohibited  by  the 

*  Vattel's  Law  of  Nations,  book  iii,  chap,  xviii. 


APPENDIX.  373 

usage  of  civilized  States.  I  have  endeavored  to  show  that  to  confis- 
cate slaves  as  property,  or  to  obtain  the  services  of  any  of  the  inhabi- 
tants of  an  invaded  country,  favorable  to  our  cause,  is  not  a  departure 
from  the  rules  of  civilized  warfare,  even  though  such  a  course  may 
have  a  tendency  to  excite  a  servile  insurrection.  That  the  dread  of 
insurrection,  if  it  may  cause  a  diversion  of  the  forces  of  the  enemy,  is 
an  additional  and  legitimate  inducement  to  inspire  that  dread;  and 
that  the  incidental  and  possible  eifect  of  a  measure,  which  the  enemy 
has  the  means  of  avoiding,  cannot  be  charged  against  the  President 
as  its  intended  effect, — more  especially  when  he  gives  notice  before- 
hand of  his  purpose. 

If  this  reasoning  be  correct,  the  Proclamation  of  the  President  is 
fully  justified  by  the  laws  of  war.  Now,  the  laws  of  war  are  part  of 
the  law  of  nations,  and  the  law  of  nations  is,  like  the  Constitution, 
the  supreme  law  of  the  land,  in  this  as  in  every  civilized  country.* 
If,  therefore,  the  Constitution  authorizes  war  to  quell  a  rebellion,  or 
to  preserve  the  Union,  it  does  not  merely  authorize,  but  commands  the 
war  to  be  conducted  according  to  the  law  of  nations.  The  President 
is  the  person  appointed  to  conduct  the  war.  He  is  the  Commander- 
in-chief  of  the  army  and  navy,  and  has  as  much  right  to  issue  this 
Proclamation,  as  he  has  to  exchange  prisoners,  to  capture  a  town,  or 
to  bombard  a  fort. 

But  it  is  said  the  President  has  exceeded  his  Executive  authority, 
and  exercised  Legislative  power,  forbidden  by  the  Constitution  even 
to  the  Legislature.  He  has  set  free,  or  will  set  free,  the  slaves,  in 
some  of  the  States.  This  objection  shows  a  strange  confusion  of 
ideas.  We  have  been  so  long  accustomed  to  regard  the  South  as 
part  of  our  country,  that  we  cannot  even  think  of  any  portion  of  it  as 
for  a  time  separate.  The  President  has  not  proposed,  in  this  Procla- 
mation, to  liberate  a  single  slave  in  any  one  of  the  United  States. 
Those  in  rebellion  are  not  united  to  the  others,  but  disunited, — cer- 
tainly for  a  time,  perhaps  forever.     We  must  treat  them  according  to 

*  1  Kent's  Commentaries,  chap.  i. 


374  APPENDIX. 

the  fact.  They  cannot  claim  the  privileae  of  being  in  and  out  of  the 
Union  at  the  same  time,  or  the  protection  of  laws  which  they  refuse 
to  obey. 

The  theory  of  the  Government,  indeed,  is,  that  the  Union  is  legally 
unbroken,  because  it  has  not  been  legally  dissolved ;  and  the  Govern- 
ment, therefore,  claims  the  right  to  restore  its  authority  over  all  its 
territory.  It  would  be  a  strange  thing  if  that  necessary  theory  could 
be  converted  into  the  means  of  defeating  its  own  objects  and  conse- 
quences. The  Proclamation  does  not  affect  a  single  State  in  the 
Union.  It  declares,  to  the  rebellious  States,  that  its  operations  shall 
not  affect  any  one  of  them  that  chooses  to  re-enter  the  Union;  but  so 
long  as  they  are  in  fact,  though  not  in  law,  out  of  it, — so  long  as  they 
make  war  upon  it, — they  are  enemies,  subject  to  the  laws  of  war. 
The  Proclamation,  therefore,  is  strictly  a  military  measure,  applicable 
only  to  public  enemies  in  time  of  war,  and  does  not  touch  the  ques- 
tion of  slavery  under  the  Constitution  in  any  State  subject  to  its  au- 
thority and  entitled  to  its  protection. 


The  Proclamation  may  nevertheless  give  rise  to  difficult  and  em- 
barrassing constitutional  questions.  It  is  strictly  an  Executive  mea- 
sure. But  Congress  may  not  approve  it.  What  power  has  Congress 
over  it  ? 

Such  a  question  cannot  arise  in  England.  The  King  or  Queen  is 
Commander-in-chief  of  the  army  and  navy.  The  Ministers,  there- 
fore, conduct  a  war  as  the  President  does  with  us.  They  are  mem- 
bers of  Parliament, — are,  in  fact,  a  committee  of  Parliament  for  the 
transaction  of  Executive  business,  and  retain  office  only  during  the 
pleasure  of  Parliament.  The  important  measures  of  war,  therefore, 
are  under  the  control  of  Parliament. 

What  is  the  power, — what,  indeed,  is  the  duty, — of  the  President, 
in  reference  to  this  point  ?  Nobody  knows.  It  is  one  of  those  ques- 
tions which  must  arise  under  a  written  Constitution,  and  which  time 


APPENDIX.  375 

and  events  only  can  determine.  Like  Congress,  the  President  is 
elected  by  the  people.  He  is  therefore  responsible,  not  to  Congress, 
but  to  the  people.  His  salary,  unlike  that  of  an  English  monarch,  is 
beyond  the  reach  of  Congress.  He  holds  office  during  his  term, 
whether  his  measures  be  approved  by  Congress  or  not.  According 
to  some,  the  Executive  is  a  co-ordinate  and  coequal  branch  of  the 
Government.  It  is  therefore  independent  of  the  Legislature, — may 
pursue  its  own  separate  course  of  action  in  its  own  sphere,  without  re- 
gard to  the  Legislature, — may  interpret  the  Constitution  according  to 
its  own  convictions;  so  that  Executive,  Legislature  and  Judiciary 
may  pull  three  different  ways.  All  are  equal,  and  each  is  supreme. 
So  says  Mr.  Bates,  the  Attorney-General,  and  he  is  not  alone  in  this 
opinion.  Even  the  Federalist  claims  it  as  a  merit  that  the  President 
is  independent  of  Congress.* 

These  topics  have  been  already  discussed  in  this  volume,  and  I 
refer  to  them  here  merely  to  show  that  the  President's  Proclamation 
may  pi'ove  one  of  those  cases  which  make  the  present  war  a  trial  of 
the  Constitution.  The  natural  position  of  Executive  power  is  that  of 
subordination  to  Legislative,  in  a  representative  Government.  The 
law-making  is  necessarily  superior  to  the  law-executing  power,  and 
a  Government  in  which  each  branch  is  coequal  and  co-ordinate  with 
the  others  is  an  impossible  Government.  In  an  important  crisis, 
should  there  be  a  difference  of  opinion,  either  all  action  must  cease, 
or  the  stronger  must  prevail,  or  a  third  power,  stronger  than  either, 
will  come  in  and  gain  the  ascendency.  As  the  Judiciary  has  no 
political  power,  the  contest  must  be  between  the  Legislature  and  the 
Executive.  There  is  only  one  thing  which  ever  has  or  ever  can  give 
to  the  Executive  ascendency  over  the  Legislature,  and  that  is  an 
army. 

In  the  struggle  between  Charles  I  and  Parliament,  the  latter  tri- 
umphed, and  the  liberties  of  England  were  savedy  because  the  King 
could  not  get  an  army.     He  had  his  Star  Chamber,  he  had  the  power 

*  Federalist,  No.  71. 


376  APPENDIX. 

of  discretionary  arrest  and  imprisonment,  but  he  could  not  get  money 
to  pay  troops  without  the  consent  of  Parliament.  Parliament  could 
raise  an  army  for  itself,  and  proved,  therefore,  too  strong  for  the 
King.  But  that  army  had  a  General,  and  it  soon  became  an  instru- 
ment in  his  hands.  With  it  he  turned  Parliament  out  of  doors,  and 
reigned  in  England,  so  wisely  and  well,  that  his  son  succeeded  him 
as  quietly  as  Victoria  succeeded  William  IV».  But  Cromwell  could 
not  bequeath  his  genius  to  his  son,  and  therefore  not  the  command  of 
the  army.  The  army,  without  a  leader,  could  not  govern ;  and  the 
free  spirit  of  the  English  people,  which  had  endured  Cromwell  be- 
cause of  the  moderation,  wisdom  and  justice  of  his  rule,  and  because 
of  the  veteran  bands  who  obeyed  him,  rose  against  the  tyranny  of 
mere  military  Government, — the  Government  of  soldiers  without  a 
leader,  or  with  several  rival  leaders.  The  people  longed  for  a  Parlia- 
ment and  for  the  old  monarchy,  and  gladly  welcomed  even  the  profli- 
gate and  frivolous  son  of  the  perfidious  and  selfish  King  whom  they 
had  dethroned  and  beheaded.  A  Parliament  again  sat  in  England, 
and  took  care  to  deprive  the  King,  by  the  Habeas  Corpus  Act,  of  a 
formidable  instrument  of  power,  freely  employed  under  the  reign  of 
his  father.  But  another  revolution  was  necessary,  before  the  triumph 
of  Parliament  and  of  liberty  was  complete.  Fortunately,  the  base 
blood  of  the  Stuarts  remained  long  enough  on  the  throne  to  bring 
this  revolution  about.  In  the  reign  of  William  III,  the  substantial 
power  of  the  English  Throne  was  transferred  to  a  Ministry,  respon- 
sible to  Parliament  and  virtually  removable  by  Parliament,  with 
enough  of  authority  left  in  the  Crown  to  render  it  a  conservative 
element  in  the  Government,  and  the  permanent  representative  of  the 
nation. 

As  before  stated  in  this  work,  we  have  no  such  clement  or  repre- 
sentative in  our  system.  In  his  authority  and  functions,  the  Presi- 
dent resembles  an  English  Ministry.  Like  thorn  he  represents  a 
party,  but,  unlike  thcni,  when  his  party  goes  out  of  power  he  does 
not.  He  remains,  the  representative  of  a  minority  in  Congress,  of  a 
minority,  or  perhaps  of  a  majority,  of  the  people.     What,  then,  ought 


APPENDIX.  377 

he  to  do, — what  can  he  do, — in  case  of  a  difference  of  opinion  be- 
tween himself  and  Congress,  supposing  him  to  be  an  honorable  man, 
and  influenced  by  pure  and  noble  motives  ?  He  cannot  well  resign, 
as  an  English  Ministry  does  in  a  similar  case.  That  is  not  the  inten- 
tion of  the  Constitution,  which  he  is  bound  to  obey.  One  of  two 
courses  only  is  left  to  him.  He  must  either  abandon  his  own  convic- 
tions, and  the  principles  of  the  party  who  trusted  him,  and  become 
the  mere  instrument  of  Congress  to  carry  out  measures  which  violate 
alike  his  own  opinions  and  the  opinions  of  his  party,  or  he  must  resist 
the  Legislature,  and  exert  what  power  he  possesses  to  oppose  and  de- 
feat its  will. 

This  is  a  false  position.  It  is  a  dangerous  and  tempting  one  to  an 
ambitious  man  ;  it  is  trying  and  painful  to  an  honest  man.  It  is  the 
result  of  the  fatal  error  of  attempting  to  make  things  equal  which,  by 
nature,  are  unequal.  So  long  as  the  Legislature  keeps  strictly  within 
its  sphere  of  making  laws,  the  duty  of  the  President  is  clear  enough. 
He  can  veto  a  bill  that  he  does  not  approve.  If  it  be  passed  by  the 
constitutional  majority  over  his  veto,  his  responsibility  ends,  because 
his  power  ends.  But  in  his  own  Executive  sphere  he  still  has  power, 
whatever  may  be  the  opinions  and  wishes  either  of  the  Legislature  or 
of  the  people,  and  with  that  power  is  inseparably  coupled  duty  and  re- 
sponsibility. Now,  what  is  the  power  of  Congress  over  the  Executive 
sphere  of  the  President  ?  Of  course  Congress  cannot  perform  Execu- 
tive duties ;  but  can  it,  like  an  Engli^i  Parliament,  direct  the  Presi- 
dent how  he  shall  perform  them  ?  If  it  cannot,  then  a  case  may 
arise  when  the  liberties  of  this  nation  will  depend  on  the  personal 
character  of  the  President. 

Perhaps  the  case  has  already  arisen.  This  war  has  already  shown 
the  absurdity  of  a  Government  of  limited  powers.  It  has  shown  that 
the  power  of  every  Government  is  and  umst  be  unlimited,  for  reasons 
already  explained  in  this  volume.  But  the  word  "Government"  does 
not  mean  one  branch  of  it;  it  means  the  Legislature  and  the  Execu- 
tive,— the  latter  acting  in  subordination  to  the  former.  Equality  is 
out  of  the  question.     One  of  the  two  must  be  supreme.     The  supre- 


378  APPENDIX. 

ruacy  of  the  Legislature  means  liberty,  because  the  Legislature  repre- 
sents the  whole  people,  receives  constantly  renewed  expressions  of 
their  will,  and  is  open  to  debate.  The  supremacy  of  the  Executive 
means  despotism,  because  it  represents  a  party, — because  its  delibera- 
tions are  secret, — because  it  acts  with  the  vigor  of  unity.  But  iu  a 
free  Government  it  is  impossible  for  the  Executive  to  become  su- 
preme, unless  it  be  invested  with  power  above  the  law  over  indi- 
viduals, and  also  with  physical  force, — with  military  power.  Let  us 
see  what  the  war  has  already  done  for  us  in  this  respect. 

Next  to  an  army,  there  is  no  more  efficient  engine  of  tyranny  than 
the  power  of  arbitrary  imprisonment, — of  silencing  the  tongue  and 
the  pen  of  the  earnest,  the  bold,  and  the  patriotic,  by  suddenly  and 
secretly,  without  a  hearing  and  without  appeal,  sending  them  where 
they  cannot  be  heard, — where  they  cannot  speak  the  truth  to  the 
people,  and  expose  the  iniquities  of  authority.  This  dangerous  power, 
which  an  English  Parliament  wrested  from  the  grasp  of  their  Kings, 
an  American  Congress,  or,  as  some  say,  the  American  Constitution, 
has  conferred  upon  the  President. 

The  right  to  personal  liberty,  like  every  other  right,  must  give  way 
to  the  public  safety.  The  object  of  Government  is  to  protect  rights; 
rights,  therefore,  cannot  be  permitted  to  overthrow  the  Government. 
The  summary  arrest  and  imprisonment,  when  the  nation  or  its  insti- 
tutions are  attacked,  of  persons  guilty  or  suspected  of  seditious  prac- 
tices or  designs,  without  the  delay  and  publicity  of  legal  proceedings, 
may  become  absolutely  necessary  or  highly  expedient.  Every  Go- 
vernment must  possess  this  power  to  protect  itself.  An  arrest  is  an 
E.xecutive  act;  and  as  the  plea  of  necessity  frequently  has  been  and 
always  may  be  used  to  cover  ambitious  and  tyrannical  designs,  the 
English  Parliament,  after  a  long  struggle,  secured  to  itself  the  power 
of  judging  when  the  public  safety  requires  a  suspension  of  personal 
liberty.  To  decide  upon  that  is  a  Legislative  act,  as  much  as  it  is  to 
decide  when  it  is  necessary  to  raise  an  army  to  defend  the  public 
safety.  Both  these  questions  are  therefore  under  the  control  of  Par- 
liament, whose  action  is  necessary  to  organize  and  support  the  army, 


APPENDIX.  379 

and  to  suspend  the  privileges  of  the  writ  of  Habeas  Corpus.  Should 
sudden  danger  arise  during  the  recess  of  Parliament,  the  Ministry 
exercise  all  its  power,  as  of  necessity  they  must,  for  they  are  the  only 
branch  of  the  Government  capable  of  acting.  What  they  do,  how- 
ever, is  subject  to  the  judgment  of  Parliament,  and  when  approved 
becomes  virtually  its  decision.  Should  a  summary  arrest  be  neces- 
sary during  the  absence  of  Parliament,  or  even  whilst  it  is  in  session, 
if  publicity  would  prevent  the  arrest,  the  Minister  does  not  hesitate  to 
make  it;  but  he  immediately  applies  to  Parliament  for  a  bill  to  ratify 
his  conduct,  and  also,  should  the  danger  continue,  for  a  suspension  of 
the  Habeas  Corpus  Act.  It  is  then  for  the  Legislature  to  judge  of 
the  necessity  for  such  a  measure,  and  to  impose  such  restrictions  as  to 
time  and  place,  and  modes  of  procedure,  as  it  may  deem  necessary. 
In  England,  therefore,  even  in  the  midst  of  rebellion  or  invasion,  per- 
sonal liberty  is  under  the  care  of  the  representatives  of  the  people. 
No  man  can  be  imprisoned,  without  a  hearing  and  a  trial,  but  by 
their  consent;  and  what,  in  certain  junctures,  maybe  more  important, 
no  one  of  those  representatives  can  be  imprisoned  by  any  authority 
known  to  the  law,  without  the  consent  of  a  majority  of  them,  which 
was  far  from  being  the  case  before  the  revolution  that  secured  Eng- 
lish liberty  from  the  grasp  of  Executive  power. 

When  the  rebellion  broke  out,  the  President,  during  the  recess  of 
Congress,  caused  several  persons  to  be  arrested  and  imprisoned,  who 
were  suspected  of  treasonable  designs,  just  as  an  English  minister 
does  on  similar  occasions.  According  to  the  English  practice,  also, 
as  soon  as  Congress  met,  the  President  told  them  what  he  had  done, 
and  asked  them  to  ratify  his  acts.  But  Congress  was  silent.  It 
passed  no  bill  either  to  approve  or  to  censure  the  act  of  the  President. 
Two  things  are  necessarily  implied  in  the  silence  of  Congress.  First, 
approbation  of  his  conduct,  for  if  they  did  not  approve,  it  was  their 
duty  to  censure  it,  to  protest  against  it.  Secondly,  want  of  power  over 
the  subject,  for  if  they  had  the  power  it  was  their  duty  to  exercise  it. 

I  have  already  discussed  this  point  in  the  Third  Chapter,  and  refer 
to  it  again  in  order  to  show  that  Congress,  whether  constitutionally 


880  APPENDIX. 

or  not,  is  not  now  the  question,  has  conferred  upon  the  President  the 
power  of  discretionary  imprisonment,  and  withdrawn  from  personal 
liberty,  for  an  indefinite  period  and  over  the  whole  country,  the  guards 
provided  for  it  by  law.  That  this  was  necessary,  that  the  rectitude 
of  Mr.  Lincoln  renders  it  safe,  do  not  alter  the  nature  of  the  fact, 
which  concerns  the  futm-e  as  well  as  the  present,  that  at  the  first 
serious  trial  of  our  Constitution,  and  in  the  first  month  of  that  trial, 
no  man  could  tell  what  protection  the  law  afforded  to  personal  liberty, 
and  that  now,  eighteen  months  after  that  trial  began,  the  question  is 
as  doubtful  as  ever.  The  law  was  unsettled,  and  Congress  refused  to 
settle  it,  though  requested  to  do  so  by  the  President.  He  has,  there- 
fore, rightly  continued  to  exercise  the  power,  but  whether  by  virtue 
of  the  implied  consent  of  Congress  or  because  of  his  exclusive  right, 
no  one  knows.  Arrests  are  made  every  day,  and  forts  are  filled  with 
state  prisoners.  The  people  are  satisfied,  because  they  comprehend 
the  necessity  of  the  case,  because  they  have  confidence  in  Mr.  Lincoln, 
and  because,  notwithstanding  some  cases  of  hardship,  unavoidable  per- 
haps, the  power  has  been  exercised  with  moderation  and  justice, 
and  without  the  slightest  taint  of  personal  motive  or  partisan  feeling. 
All  this  is  true,  and  yet  it  is  also  true,  that  this  war,  notwithstand- 
ing the  boasted  freedom  of  our  Constitution  and  because  of  its  prin- 
ciples and  structure,  has  conferred  on  the  Executive  branch  of  the 
Government,  absolute  and  irresponsible  power  over  the  liberty  of  the 
citizen. 

The  war  has  also  given  to  the  Executive  an  army.  The  conspira- 
tors against  the  Union  managed  their  affairs  with  skill.  They  chose 
for  the  execution  of  their  plot  a  moment  when  the  Government  had 
been  weakened  by  their  own  leaders  who  were  in  office  under  it,  when 
an  old  President  was  going  out  and  a  new  one  coming  in.  Mr. 
Lincoln,  in  the  midst  of  novel  circumstances,  inexperienced  in  the 
labors  of  his  office,  surrounded  by  covert  enemies  and  a  disaffected 
people,  found  himself  .«iuMonly,  also,  in  the  midst  of  civil  war.  Here, 
also,  he  followed  English  precedent.  He  took  the  responsibility  of 
calling  out  troops,  of  enlarging  the  army  and  navy,  trusting  that  Con- 


APPENDIX.  381 

gress  would  sustain  him  and  furnish  the  needful  supplies.  In  this 
case  there  was  no  doubt  about  the  law.  Congress,  like  Parliament, 
alone  had  authority  to  enlist  and  pay  an  army,  and  was  obliged  to  act. 
As  a  majority  of  Congress  thought  it  constitutional  to  make  war  to 
sustain  the  authority  of  the  Government  and  to  preserve  the  Union, 
they  expressly  ratified  the  acts  of  the  President  in  this  respect,  and 
gave  him  liberally  both  men  and  money.  They  thus  settled  the  law, 
so  far  as  this  precedent  can  settle  it,  on  one  importat  point, — that  in 
the  recess  of  Congress,  when  the  public  safety  requires  it,  the  Presi- 
dent may  enlist  troops,  as  the  agent  of  Congress,  and  subject  to  their 
approval.  Had  they  been  equally  explicit  in  reference  to  the  law  of 
Habeas  Corpus,  much  mischief  would  have  been  prevented. 

The  rebellion  grew  in  strength.  More  and  more  troops  were  re- 
quired until  the  number  has  swelled,  it  is  said,  to  nearly  a  million. 
The  war  has  thus  conferred  upon  the  Executive  an  immense  army. 
The  war  has  lasted  eighteen  months.  The  Constitution  is  a  little 
more  than  seventy  years  old.  Already  under  the  Constitution  and 
because  of  a  civil  war,  a  President  of  the  United  States  finds  himself 
invested  with  the  command  of  a  million  of  armed  men  and  with  abso- 
lute, discretionary  and  irresponsible  power  over  the  personal  liberty  of 
every  citizen,  members  of  Congress  included.  It  is  in  vain  to  deny 
it.  However  right,  however  necessary  this  result  may  be,  it  is  a 
result,  it  is  an  accomplished  flxct,  and  one  too  of  no  small  significance. 

Has  it  then,  indeed,  already  come  to  this  ?  Has  Democracy  so 
soon  done  its  work  and  erected  a  military  despotism  on  the  ruins  of 
our  model  republic  ?  Not  yet.  Mr.  Lincoln  is  no  despot,  nor  has  he 
evinced  any  desire  to  become  one.  Neither  has  he  the  power.  He 
is,  indeed,  nominally  in  command  of  a  large  military  force,  but  not  of 
an  army,  in  the  European  sense, — of  a  machine,  blindly  obedient, 
without  thought  or  will  of  its  own.  He  is  surrounded  by  a  number 
of  his  fellow-citizens,  acting  for  the  time  as  soldiers,  who  have  volun- 
tarily come  forward  to  help  him  save  their  country.  If  they  sus- 
pected him  of  any  design  against  the  liberties  of  their  country,  they 
would  as  willingly  point  their  guns  at  him  as  at  the  enemy.     But 


382  APPENDIX. 

those  facts  liavc  nothing  to  do  witli  an  argument  intended  to  show- 
that  by  virtue  of  the  Constitution  such  a  state  of  things  has  come  to 
pass.  They  prove,  indeed,  that  under  that  Constitution,  the  liberties 
of  the  people  may  depend  on  the  temper  of  an  army  and  on  the.  per- 
sonal qualities  of  its  chief.  If  the  charges  made  against  the  Ad- 
ministration by  its  Northern  and  Southern  enemies  were  true  ;  if  Mr. 
Lincoln  was  a  ftinatic  and  reckless  partisan  ;  if  the  whole  object  of  the 
war  was  the  abolition  of  slavery ;  if  the  masses  of  the  Northern  people 
were  Abolitionists,  and  the  "  Yankee  hordes  "  invading  the  South,  no 
better  than  "  nigger  stealers"  and  "  iucendiarists,"  then,  indeed,  the 
danjrer  would  be  serious.  A  fanatic  at  the  head  of  a  million  of  fa- 
natics,  a  John  Brown  leading  an  army  of  John  Browns,  and  invested 
with  the  legal  power  of  discretionary  imprisonment,  would  be  irre- 
sistible. So,  too,  there  would  be  danger  if  the  chief  of  this  army  was 
a  "  military  hero,"  a  Caisar,  a  Bonaparte,  or  even  a  Jackson,  A 
Constitution  should  provide  against  dangers  which,  from  the  nature 
of  man,  are  likely  to  occur.  It  is  intended  to  meet  the  storms  of  the 
future  and  cannot  count  on  always  having  a  patriotic  army  and  a  pa- 
triotic President. 

Even  these  are  not  always  a  security.  Oliver  Cromwell  was  an 
honest  man.  The  vulgar  slander  that  he  was  an  impostor,  a  criminal 
usurper  influenced  by  personal  ambition,  has  been  long  since  disproved. 
He  was  inspired  by  a  lofty  religious  and  political  enthusiasm.  Edu- 
cated in  a  humble  station,  he  joined  the  party  who  resisted  a  tyrant. 
His  genius  soon  made  him  conspicuous,  soon  placed  him  in  command 
of  an  army.  That  army  was  distinguished  not  merely  by  courage  and 
discipline,  but  by  intelligence,  by  high  moral  tone,  and  by  an  earnest 
and  passionate  devotion  to  an  idea,  a  cause,  unsurpassed  by  the 
soldiers  of  the  Cross  in  the  first  fervor  of  the  Crusades  or  the  fiery 
horsemen  of  Mahomet.  It  is  thus  described  by  Macaulay  :  "  The 
ranks  were  composed  of  persons  superior  in  education  and  station  to 
the  multitude.  These  persons,  sober,  moral,  diligent,  and  accustomed 
to  reflect,  had  been  induced  to  take  up  arms,  not  by  the  pressure  of 
want,  not  by  the  love  of  novelty  and  license,  not  by  the  arts  of  recruit- 


APPENDIX.  383 

ing  officers,  but  by  religious  and  political  zeal,  mingled  with  the  desire 
of  distinction  and  promotion.  The  boast  of  the  soldiers  was,  that  they 
had  not  been  forced  into  the  service,  nor  had  enlisted  chiefly  fur  the 
sake  of  lucre;  that  they  were  no  janizaries,  but  freeborn  Englishmen, 
who  had  of  their  own  accord,  put  their  lives  in  jeopardy  for  the 
religion  and  liberty  of  England,  and  whose  right  and  duty  it  was  to 
watch  over  the  loclfare  of  the  nation  they  had  saved."* 

This  army  had  purposes  of  its  own.  It  was  determined  to  establish 
a  republic.  It  was  determined  to  put  to  death  the  tyrannical  and 
perfidious  king,  openly,  before  the  eyes  of  the  world.  It  had  been 
the  army  of  the  Long  Parliament,  and  none  wiser  or  more  patriotic 
had  ever  sat  in  England,  but  the  purposes  of  the  army  were  approved 
neither  by  Parliament  nor  by  the  nation.  The  army,  however,  had 
become  the  master  of  both,  and  closed  the  doors  of  Parliament  by 
force. 

After  the  death  of  the  King,  the  Government  was  without  a  person 
to  represent  Executive  power.  Naturally  the  place  fell  to  Cromwell. 
No  one  else  could  occupy  it.  No  one  else  could  control  the  army. 
No  one  else  could  save  the  nation  from  anarchy.  Authority,  with  all 
its  responsibilities  and  duties,  was  thus  thrust  upon  him.  He  could 
not  refuse  it.  When  he  accepted  it  he  was  obliged  to  maintain  his 
authority.  He  could  couimaud  the  army  only  by  guiding  and  regu- 
lating, not  by  resisting  its  desires.  The  army  would  not  submit  to 
the  dictation  of  Parliament,  and  Parliament  would  not  submit  to  the 
control  of  the  army.  Such  a  dispute  could  have  but  one  i.ssue. 
"Cromwell  filled  the  house  with  armed  men.  The  Speaker  was 
pulled  from  his  chair,  the  mace  taken  from  the  table,  the  room 
cleared  and  the  door  locked.  The  nation,  which  loved  neither  of 
the  contending  parties,  but  which  was  forced  in  its  own  despite  to 
respect  the  capacity  and  resolution  of  the  general,  looked  on  with 
patience,  if  not  with  complacency. "f 

For  twelve  years  after  this,  the  Government  of  England  was  a  mili- 

*  1  Alacaulay's  History  of  England,  112. 
t  1  Macaulay's  England,  123. 


384  APPENDIX. 

tary  despotism.  But  such  a  Government  does  not  suit  the  Saxon 
race.  "Whilst  the  despot  lived  they  endured  it,  because  of  the  advan- 
tages it  brought.  When  he  died  they  got  rid  of  it.  The  proposal 
for  a  free  Parliament,  for  an  omnipotent  Parliament,  instead  of  an 
omnipotent  dictator,  was  welcomed  with  universal  joy.  The  Consti- 
tution was  in  a  transition  state,  and  the  stern  rule  of  Cromwell  was 
necessary  at  the  crisis  of  its  fate.  But  for  him  the  King  would  have 
been  recalled,  and  would  have  brought  back  his  extravagant  claims  of 
power,  the  haughty  arrogance  of  his  party,  all  the  old  issues  and  old 
quarrels.  The  axe  that  severed  his  head  from  his  shoulders,  severed 
also  from  the  Government  some  of  the  false  principles  and  abuses  of 
the  past  and  opened  the  way  for  another  revolution  which  was  des- 
tined to  establish  the  Constitution  on  a  firm  and  durable  basis.  This 
second  revolution  was  made,  not  by  a  military  dictator,  but  by  a  free 
Parliament,  a  Parliament,  not  of  limited  and  enumerated  powers,  but 
"omnipotent"  over  the  nation  and  the  Constitution,  because  it  repre- 
sented the  people.  Since  that  time  England  has  been  in  no  danger 
of  military  dictation.  She  has  had  armies  and  wars  and  heroes  and 
glory,  but  the  armies,  the  wars  and  the  heroes,  have  been  under  the 
control  of  ministers  responsible  to  Parliament.  No  Marlborough  or 
Wellington,  however  much  the  idol  of  the  army  or  of  the  nation,  has 
even  dreamt  of  usurping  political  power,  England  gives  to  her  suc- 
cessful soldiers  honors  and  titles,  parks  and  palaces,  but  does  not  give 
them  crowns  and  sceptres. 


Is  our  Constitution  in  a  transition  state?  And  must  we,  before  it 
can  be  settled,  pass  through  the  sharp  ordeal  of  military  rule  ?  The 
aspect  of  affairs  is  not  hopeful,  not  because  Mr.  Lincoln  has  control  of 
the  writ  of  Habeas  Corpus,  or  because  he  has  an  army,  but  because 
of  the  fearful  anarchy  of  opinion  which  rages  throughout  the  country. 
The  natural  consequence  must  be  anarchy  of  action,  since  opinion  is 
the  parent  of  action,  and  military  rule  is  better  than  anarchy, — is, 
indeed,  the  result  of  anarchy. 


APPENDIX.  385 

Everything  is  unsettled.  No  one  can  tell  what  are  the  wishes  of 
the  people,  the  purposes  of  parties  or  the  probable  course  of  opinion 
on  any  one  subject  connected  with  the  situation  of  the  country.  One 
party  clamors  for  the  "  Union  as  it  was,"  the  old  Union  with  slavery, 
to  bring  back  the  arrogant  dictation,  the  monstrous  claims,  the  corrupt 
party  alliances  of  the  South,  with  the  old  quarrels  and  the  old  issues 
to  cause  another  war.  What  do  other  parties  desire  ?  They  scarcely 
know.  They  say,  wisely,  "  Let  us  finish  the  war  by  utterly  crushing  the 
rebellion  first  and  discuss  questions  relating  to  the  Union  afterwards." 

But  meanwhile  the  rebellion  is  not  easily  crushed,  encouraged  as  it 
is  by  the  sympathy  of  its  Northern  friends.  It  hails  Democratic  vic- 
tories at  the  Northern  elections  with  as  much  delight,  as  it  does  its 
own  victories  on  the  battle-fields  of  the  Potomac.  The  former  are 
evidences  of  a  divided  North,  and  it  knows  that  a  divided  North 
cannot  conquer  a  united  South.  The  rebellion  does  not  desire  the 
"Union  as  it  was,"  or  any  union  with  the  North.  But  if  it  cannot 
obtain  separation  and  independence,  there  would  be  some  triumph  in 
capturing  Washington  by  force  of  votes,  if  it  fails  to  do  so  by  force  of 
arms.  Thus  strengthened,  however,  it  may  be  impossible  either  to 
conquer  the  Southern  people  or  win  them  back  by  any  concessions 
however  humiliating.  Should  that  be  the  result  of  the  war,  what  is 
to  be  done  ?  By  what  forms  is  separation  to  be  accomplished  ?  Which 
are  the  Southern  States?  Where  is  the  line  to  be  drawn,  and  who  is 
to  draw  it?  Can  Congress  draw  it  and  erect  a  great  Northern  con- 
federacy? "Impossible,"  is  the  cry,  "the  Constitution  grants  to 
Congress  no  such  power.  When  the  'compact'  is  once  broken,  the 
Union  ceases  to  exist,  Congress  ceases  to  exist,  nothing  remains  of 
the  nation  once  called  the  United  States,  and  each  State  is  at  liberty 
to  form  what  alliances  it  pleases.  The  Northwest  will  of  course  set 
up  for  itself;  so  will  New  England;  the  Middle  States  will  be  at- 
tracted in  different  ways,  as  interest,  geography  or  slavery  may  direct; 
as  for  Pennsylvania,  she  will  go  with  the  South." 

Such  is  the  Babel  of  opinion  resounding  on  all  sides,  wild,  extrava- 
gant, insane,  from  which  no  definite  plan  or  purpose  can  be  gathered. 

25 


386  APPENDIX. 

It  seems,  indeed,  as  if,  for  our  presumption  in  attempting  to  raise  our 
tower  of  empire  so  high,  we  had  been  struck  with  confusion  of 
tongues,  and  had  ceased  to  be  intelligible  to  each  other. 

Is  it  not  plain  that  to  save  us  from  anarchy  and  its  consequences, 
military  despotism,  a  Government  is  necessary,  a  real  Government, 
not  with  limited  powers,  but  with  all  powers  adequate  to  the  occasion  ? 
The  Proclamation  of  the  President  is  a  military  measure.  As  such 
it  is  Executive.  But  does  it  follow  that  over  it  Congress  ought  to 
have  no  control  ?  Beyond  its  military  effects,  it  may  have  conse- 
quences immediate  and  remote.  It  may  influence  slavery  in  the 
Border  States;  it  may  influence  the  condition  of  the  rebellious  States 
after  they  return  to  the  Union,  if  they  ever  do.  Congress  represents 
the  interests  of  all.  Each  party  has  a  vote  in  Congress,  has  a  hear- 
ing, has  an  appeal  to  the  country.  But,  according  to  the  wretched 
dogmas  of  the  day.  Congress  has  no  power  over  the  Proclamation 
because  it  is  an  Executive  act,  and  no  power  over  slavery  because  that 
lies  within  the  interdicted  province  of  the  Slave  States.  An  English 
Parliament  would  settle  the  matter  very  easily.  It  would  adopt, 
modify  or  annul  the  Proclamation,  as  circumstances  required.  It 
would  permit,  restrict,  alter  or  abolish  slavery,  according  to  the  de- 
liberate will  of  the  nation.  Should  the  settlement  thus  made  prove 
unwise  or  unsatisfactory,  another  Parliament,  instructed  by  experience 
and  by  a  renewed  expression  of  public  opinion,  would  amend  the  work 
of  the  former,  until,  by  this  process,  that  justice  was  at  last  attained 
which  satisfies  all. 

Parliament  could  do  this  because  its  authority  is  at  the  same  time 
unshackled  and  unquestioned.  No  one  doubts  or  disputes  it,  no  one 
says  its  acts  are  void.  Power  of  this  sort  is  now  demanded  by  our 
situation.  There  is  something  vital  to  the  nation  to  be  done, — some- 
thing that  must  be  done  to  save  us  from  anarchy,  to  save  the  Union, 
or  a  Union,  to  preserve  to  us  a  Government  and  a  country.  But  there 
is  no  one  to  do  what  is  necessary,  no  man  or  body  of  men  with  autho- 
rity to  grasp  the  vast  and  complicated  problem  presented  to  us  and 
solve  it.     This  is  the  fatal  calamity  of  the  crisis.     It  is  felt  by  every 


APPENDIX.  387 

one,  and  proposals  arc  iiiade  to  call  a  National  Convention  to  arrange 
the  dispute  about  slavery,  and  to  do  whatever  the  emergency  may 
demand.  What  is  this  but  a  confession  that  we  have  no  National 
Government?  What  is  the  object  of  a  convention  but  to  do  some- 
thing that  Congress  cannot  do  ?  So  we  had  a  Peace  Convention  two 
years  ago,  sitting  in  Washington  alongside  of  Congress,  attempting 
to  do  its  work,  but  it  could  not  prevent  war.  Congress,  however, 
could  have  prevented  war  had  it  possessed  absolute  and  unquestioned 
power  over  the  whole  subject.  It  might  not  have  settled  the  question 
wisely  or  satisfactorily  to  all  parties,  but  subsequent  discussions  about 
it  would  have  been  had  in  the  halls  of  the  Legislature,  not  in  battle- 
fields. 

And  now  it  is  proposed  to  choose,  in  the  midst  of  civil  war,  by  a 
popular  election,  a  National  Convention  to  do  the  work  of  a  National 
Government.  That  Convention  must  be  elected  by  the  same  people 
who  have  already  elected  a  Congress.  It  will,  therefore,  represent 
the  passions  and  opinions  that  divide  the  people  and  which  are  al- 
ready represented  in  Congress.  It  will  be  governed  by  the  same 
leaders  of  parties,  the  same  ''politicians,"  who  already  direct  public 
sentiment  and  control  public  affairs,  for  none  others  can  be  elected 
because  none  others  are  known  to  the  people.  It  will  be  wholly  irre- 
sponsible, because  its  members,  chosen  for  the  occasion  only,  will  not 
be  influenced  either  by  the  hope  of  re-election  or  the  fear  of  being 
turned  out,  and  the  people  will  thus  have  no  means  or  opportunity  of 
expressing  their  disapprobation  of  the  conduct  of  the  Convention. 
There  wiH  be  no  check  whatever  on  its  action,  such  as  Congress  is 
subjected  to  by  its  division  into  two  houses,  by  the  veto  of  the  Presi- 
dent, and  by  the  opinion  of  the  Judiciary.  Invested  thus  with  the 
omnipotence  of  an  English  Parliament,  but  without  any  of  its  restrain- 
ing influences,  internal  or  external,  the  Convention,  dressed  in  a  brief 
authority,  might  play  some  fantastic  tricks,  which,  if  they  did  not 
make  the  angels  weep,  would  more  than  ever  divide  sections  and 
parties,  inflame  passion  and  very  probably  produce  the  anarchy  it  was 
intended  to  prevent. 


338  APPENDIX. 

Conventions  are  ever  prone  to  exceed  their  commission.  The  ex- 
tent of  power  granted  to  them  always  becomes  a  question,  which  will 
always  be  decided  according  to  the  most  enlarged  and  liberal  construc- 
tion. So  it  was  with  the  Convention  that  made  the  Constitution. 
They  were  elected  to  alter  and  amend  the  Articles  of  the  Confederation, 
and  they  abolished  them  altogether.  The  origin  of  that  Convention 
was  a  meeting  of  eoftimissioners,  who  assembled  at  Annapolis,  instructed 
to  inquire  into  the  regulation  of  commerce.  They  said  nothing  about 
commerce,  but  adopted  a  report,  exhorting  the  States  to  appoint  a 
Convention  to  alter  the  Constitution. 

In  1837,  a  Conventiun  met  to  alter  the  Constitution  of  Pennsylvania. 
It  was  elected  by  virtue  of  an  act  of  the  Legislature,  which  declared 
that  it  should  have  authority  "  to  submit  amendments  of  the  State 
Constitution  to  a  vote  of  the  people  for  their  ratification  or  rejection, 
and  with  no  other  or  greater  poicers  whatever.'^  And  yet,  of  this  re- 
stricted body,  a  very  influential  and  eminent  gentleman,  who  has  oc- 
cupied some  of  the  highest  public  stations,  said,  ''  What  may  it  not 
do  ?  It  may  reorganize  our  entire  system  of  social  existence,  termina- 
ting and  proscribing  what  is  deemed  injurious,  and  establishing  what 
is  preferred.  It  might  restore  the  institution  of  slavery  among  us,  it 
might  make  our  penal  code  bloody  as  that  of  Draco;  it  might  with- 
draw the  charters  of  the  cities;  it  might  supersede  a  standing  judi- 
ciary by  a  scheme  of  occasional  arbitration  and  umpirage ;  it  might 
prohibit  particular  professions  and  trades ;  it  might  permanently  sus- 
pend the  privilege  of  the  writ  of  Habeas  Corpus,  and  take  from  us  the 
trial  by  jury." 

Mr.  Dallas  was  right.  Such  are  necessarily  the  powers  of  an  as- 
sembly, from  which  all  restraint  and  responsibility  are  removed;  and 
to  the  guardianship  of  such  it  is  now  proposed  to  commit  the  country 
and  the  Constitution,  because  unlimited  power  is  necessary,  and  no 
existing  authority  has  unlimited  and  unquestioned  power.  This  power 
ought  to  be  in  Congress.  I  have  endeavored  to  show  in  the  course 
of  this  book,  that  according  to  the  true  construction  of  the  Constitu- 
tion, it  is  in  Congress.     There  only  can  it  be  safely  placed,  because 


APPENDIX.  389 

there  only  can  it  be  controlled.  A  Convention  must,  like  Congress, 
be  governed  by  a  majority,  and  that  majority,  in  the  present  state  of 
opinion,  is  more  likely  to  be  extravagant,  aggressive  and  tyrannical 
than  a  majority  of  Congress,  v?hilst  a  minority  would  have  no  protec- 
tion whatever,  either  from  the  President  or  from  the  people,  for  the 
people  having  given  their  whole  power  to  the  Convention,  could  not 
withdraw  it,  whereas  the  work  of  Congress  is  never  done,  and  the 
people  are  always  giving  and  withdrawing  their  power. 

Should  the  performance  of  the  Convention  not  satisfy  the  people, 
what  is  the  remedy  ?  Shall  we  call  another  ?  Which  then  would  be 
the  Government,  Congress  or  these  Conventions  ?  A  Convention,  un- 
less assembled  by  the  forms  provided  in  the  Constitution,  would  be  a 
body  unknown  to  the  law,  and  therefore  without  legal  authority.  If 
elected  according  to  those  forms,  its  acts  must  be  ratified  by  the  people. 
Thus  there  must  be  another  resort  to  a  popular  vote,  in  the  midst  of  wai', 
with  a  wide  field  opened  to  agitators  and  demagogues  to  do  their  work 
of  iniquity.  What  sane  man  could  expect  a  fortunate  or  peaceful 
result  from  thus  throwing  our  interests,  our  hopes  and  the  Constitution 
into  such  a  boiling  sea  of  discord  ?  How  could  the  war  prosper  amid 
such  agitations  ?  Imagine  a  Convention  now  called  in  the  South,  to 
alter  the  Constitution  of  the  Southern  Confederacy,  Would  not  such 
a  measure  be  worth  to  us  a  dozen  victories  ? 

However  elected,  the  Convention  would  be  called  to  do  something 
which  Congress  cannot  do.  At  such  a  time,  it  would  be,  therefore,  in 
the  nature  of  a  provisional  or  revolutionary  government,  but  different 
from  others  of  that  kind  in  this,  that  the  legal  Government  would  be 
still  in  existence  and  full  operation.  It  would  seem  a  more  simple 
way  for  that  Government  to  do  what  is  necessary,  as  it  represents  and 
is  responsible  to  the  people,  and  is  in  possession  of  all  the  apparatus 
of  authority. 

But  it  has  not  the  constitutional  power,  is  the  answer.  Whatever  it 
might  do  beyond  the  strict  limits  of  the  law  would  be  void,  and  could 
not  command  obedience.  Thus  we  sit,  spellbound  within  the  invisible 
walls  of  an  enchanted  castle,  unable  to  stir,  hand  or  foot.    If  the  nation 


300  APPENDIX. 

cannot  be  saved  according  to  the  Constitution,  is  the  cry,  let  it  perish. 
Yet  what  that  Constitution  is,  or  what  its  meaning,  no  one  has  the  wit 
to  find  out.  Something,  however,  must  be  done,  and  rather  than  per- 
mit Congress  to  do  it,  another  Government,  with  unlimited  and  irre- 
sponsible power,  is  proposed,  to  whose  charge  is  to  be  committed  that 
Constitution,  which  cannot  be  trusted  to  the  existing  Government,  re- 
strained as  it  is  by  internal  structure,  and  by  the  continuing  control  of 
the  people. 

It  is  a  hazardous  thing  to  alter  a  constitution,  by  setting  aside  and 
supplanting  an  existing  Government  in  the  midst  of  war.  If  the  plan 
had  been  suggested  by  Mr.  Jefferson  Davis  himself,  it  could  not  have 
been  more  ingeniously  contrived  to  aid  his  designs.  A  divided  North, 
raging  parties,  one  of  which  opposes  the  war,  popular  agitation,  possibly 
popular  tumult  and  convulsion, — these  at  this  time  would  be  to  him 
worth  an  army.  Perhaps  for  this  reason  they  might  not  be  as  agreeable 
to  our  army,  as  they  certainly  would  be  to  his.  A  million  of  citizen 
soldiers  in  the  field,  might  choose  to  have  an  opinion  and  a  will  on  the 
exciting  questions  involved  in  such  proceedings,  especially  when  their 
manifest  tendency  is  to  strengthen  and  encourage  the  enemy.  The 
army,  if  it  moved  in  the  matter  at  all,  would  either  support  the  Con- 
vention or  oppose  it.  If  it  opposed  the  Convention,  the  reign  of  an- 
archy would  begin.  If  it  supported  the  Convention,  the  reign  of 
military  power  would  begin.  An  army  is  only  safe  for  the  national 
liberty  under  a  leyislafare,  whose  power  is  undisputed.  A  disputed 
authority,  whose  acts  every  one  may  call  in  question,  is  weak.  Almost 
every  act  of  our  Government  is  declared  unconstitutional  and  void  by 
somebody.  Therefore  our  Government  is  weak,  if,  indeed,  we  have 
any  at  all,  which  begins  to  be  doubtful.  Power  by  the  laws  of  its 
nature  leaves  weakness  and  goes  to  strength.  Power  will  leave  a  weak 
government  that  has  a  strong  army,  and  go  to  the  army. 

War  is  the  last  resort  of  parties  who  have  no  common  superior, 
acknowledged  by  both,  to  settle  their  disputes.  The  present  war  be- 
tween North  and  South  was  caused  by  the  want  of  such  a  superior. 
The  want  is  still  unsatisfied.     No  authority  exists,  recognized  by  all, 


APPENDIX.  391 

to  decide  tlie  vital  questions  of  the  hour.  The  intelligence  of  the 
people  has  no  organ,  their  will  no  arm.  The  Government  sits  im- 
prisoned within  the  walls  of  the  Constitution,  ideal  walls,  which,  strange 
to  say,  no  one  can  describe,  encircling  power  in  a  magic  ring.  With- 
drawing from  this  mysterious  precinct  with  superstitious  awe,  the  people 
are  trying  to  find  some  power,  beyond  the  enchanted  ground,  some 
unlimited  and  undisputed  power,  to  dispose  of  vexed  questions  by 
thought,  instead  of  by  force.  It  will  be  fortunate  indeed,  if  they  suc- 
ceed, though  everything  is  possible  for  the  American  people. 

It  cost  England  a  Cromwell  and  thirteen  years  of  military  despotism, 
to  get  a  free  Parliament,  that  is  to  say,  a  Parliament  free  to  do  any- 
thing the  people  wished  it  to  do.  Cromwell  was  a  great  blessing  to 
England,  Such  men  do  not  grow  on  every  bush,  and  he  arrived  at 
the  lucky  moment.  The  time  may  come,  and  ere  long,  when  a  Crom- 
well would  be  a  great  blessine;  to  us. 


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